Smith v. Houston County Hospital Bd., 4 Div. 412

• Decision Date: 02 December 1971
• Docket Number: 4 Div. 412
• Citation: 287 Ala. 705,255 So.2d 328
• Parties: James Edward SMITH v. HOUSTON COUNTY HOSPITAL BOARD.
• Court: Alabama Supreme Court

Page 328

255 So.2d 328

287 Ala. 705

James Edward SMITH v. HOUSTON COUNTY HOSPITAL BOARD.

4 Div. 412.

Supreme Court of Alabama.

Dec. 2, 1971.

Ramsey & Johnson, Dothan, for appellant.

Alto V. Lee, III, William L. Lee, III, William G. McKnight, Dothan, for appellee.

McCALL, Justice.

The plaintiff appeals from a judgment of voluntary nonsuit suffered by him because of an adverse ruling of the trial court in sustaining the defendant's demurrer to the amended complaint which consists of counts three through eight inclusive.

The question is what form of action is stated in these several counts; that is, do they allege an action ex contractu or ex delicto? The plaintiff argues that count three of the amended complaint avers a breach of an implied contract wherein and whereby:

'* * * for valuable consideration, defendant impliedly contracted, undertook, promised and agreed to nurse and care for said plaintiff on said date and to furnish to the said plaintiff all the special facilities offered by it in the regular course of its operations of said hospital all for the purpose of administering medication to the plaintiff in the said hospital's aforementioned emergency room; to furnish said facilities and services in and about the administering of the aforesaid medication with reasonable skill diligence; that on said date, pursuant to said contract, the plaintiff entered the said emergency room so operated by the defendant, after having agreed to pay all reasonable compensation and charges and subsequently paying all such charges for the said facilities to be used and services to be rendered by the defendant, but that said defendant did not perform or fulfill its contract to nurse and care for the said plaintiff and to administer the said medication to the plaintiff, but on the contrary, The defendant on the aforementioned date, the 27th day of March, 1967, Administered to the plaintiff, certain medication by injection with a hypodermic syringe, and in violation of the said contract with the plaintiff, and in violation of the terms of the implied contract, administered the said medication In such a way as to inject the said medication into the nerves of the plaintiff's right arm with the consequence that the nerves of the plaintiff's right arm and the superficial radial nerve and the median nerve of plaintiff's right arm were injured and damaged and Were permanently injured and permanently damaged and as a proximate consequence thereof, the plaintiff's said right arm was rendered permanently damaged, permanently useless, and permanently incapacitated, and the plaintiff was caused to suffer pain and mental agony And the plaintiff received all of such injuries as a proximate conquence of the breach of the said implied contract. The plaintiff further avers that No other service was sought from the defendant other Than the administering of the aforementioned Medication which the defendant contracted and undertook to administer.' (Italics supplied)

Count four is much the same as count three above, but adds to the charging part 'and in violation of the implied contract to use reasonable skill and diligence, administered the said medication in such a way as to inject' it into the nerves of the plaintiff's right arm.

Count five is likewise similar to count three, but adds that the defendant impliedly contracted to furnish said special facilities and administer the said medication in a workmanlike manner. The wrong charged is that in violation of the implied contract to offer the said facilities and to perform said services in a workmanlike manner, the defendant administered the said medication in such a way as to inject it into the nerves of the plaintiff's right arm.

The plaintiff concedes in his brief that count six does not sufficiently state the implied contract, so we will not consider this count.

The plaintiff characterizes count seven as an action for the breach of an implied contract, the gravamen of which is that the contract was to administer medication and that when the medication was administered, it was administered into the nerve of the plaintiff thereby crippling his arm.

The plaintiff contends that the form of all of these counts sounds in contract. After carefully reading and studying each count, we consider that they do not aver a breach of any alleged promise made by the defendant hospital, but they aver a breach of a duty implied in law, a tort. The duty alleged to have been violated, is not averred in the count as a term of the contract to be performed, as may be the case in an express contract; and the law does not imply such a contractual duty. The duty arises not in the terms of the contract, but because the law imposes the duty not to wrongfully injure the plaintiff in doing the act. When that duty is breached, an action in tort only is available, because no express or implied contract is breached.

In Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 258, 73 So.2d 524, 529, we said:

'* * * When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty--but does not imply a contract--to exercise due care in doing the act; and, therefore, when negligence exists in doing that act an action in tort only is available because there is no express or implied contract which is breached. * * *'

And in Vines v. Crescent Transit Co., 264 Ala. 114, 119, 85 So.2d 436, 440, the court said:

'It will be observed that a negligent failure to perform a contract express or implied (as alleged in count B) is but a breach of the contract. But if in performing it, it is alleged that defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action. * * *'

We think the distinction between the nature of the two actions, contract and case, is well stated in Mobile Life Insurance Co. v. Randall, 74 Ala. 170, at 178, where the court said:

'* * * if the transaction had its origin in a contract, which places the parties in such relation as that, in performing or attempting to perform the service promised, the tort or wrong is committed, then the breach of the contract is not the gravamen of the suit. * * * The wrongful act, outside of the letter of the contract, is the gravamen of the complaint; and in all such cases, the remedy is an action in the case. * * * The contract is mere inducement, and the action is on the case. * * *'

Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852, is a case in point as to whether an alleged action should be deemed to sound in case (tort) or in assumpsit (contract). There the plaintiff alleged that she contracted with the defendant for general hospital care and treatment for her injury, and that she performed her contract by paying all hospital charges. She further averred that the defendant breached the contract by moving or turning her in bed in such a rough manner as to proximately cause the prosthesis, attached to the...