Hembree v. Hospital Board of Morgan County

Supreme Court of Alabama

Hembree v. Hospital Board of Morgan County

300 So. 2d 823, 293 Ala. 160, 1974 Ala. LEXIS 939

CourtSupreme Court of Alabama

DecidedSeptember 19, 1974

DocketSC 766

StatusPublished

Cited by4 cases

This text of 300 So. 2d 823 (Hembree v. Hospital Board of Morgan County) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hembree v. Hospital Board of Morgan County, 300 So. 2d 823, 293 Ala. 160, 1974 Ala. LEXIS 939 (Ala. 1974).

Pincite

Opinions

PER CURIAM.

The appellant filed suit against the Hospital Board of Morgan County for injuries received by her while at the hospital which was owned and operated by Morgan County. The defendant-appellee moved for summary judgment, which was granted, and plaintiff appealed.

The only count argued in brief by appellant is a count charging breach of an implied contract.

This case presents the same question presented in Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699, but that case went off on the inade[162]*162quacy of the assignments of error. The same question was presented in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328. In that case, it was held that the duty of the hospital did not arise “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.” (Emphasis supplied.) The holding in Smith was supported by Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524, and Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852.

The action being in tort and not in contract, the defense of governmental immunity was a bar to recovery.

Appellant, in the instant case, argues in brief that if this court should “base its decision on Smith, appellant has no cause of action.” We were asked to overrule Smith. We affirm the holding in Smith. The minority would overrule Smith. The trial court followed Smith and it results that the judgment of the trial court should be, and is

Affirmed.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.

This case was considered by the entire court in general consultation on Monday, September 9, 1974, and a vote was taken. The vote required the writing of an opinion to conform to the views of the majority. On September 12, appellant filed a motion to dismiss the appeal. This motion was denied because a motion to dismiss after the court has decided a case comes too late. The fact that appellant desired to dismiss the appeal accounts for the writing of this short opinion.

All the Justices concur except JONES, J., who dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

The appellant filed suit against the Hospital Board of Morgan County for injuries received by her while at the hospital which was owned and operated by Morgan County. The defendant-appellee moved for summary judgment, which was granted, and plaintiff appealed.

The only count argued in brief by appellant is a count charging breach of an implied contract.

This case presents the same question presented in Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 278 So.2d 699, but that case went off on the inade[162]*162quacy of the assignments of error. The same question was presented in Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328. In that case, it was held that the duty of the hospital did not arise “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.” (Emphasis supplied.) The holding in Smith was supported by Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524, and Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So.2d 852.

The action being in tort and not in contract, the defense of governmental immunity was a bar to recovery.

Appellant, in the instant case, argues in brief that if this court should “base its decision on Smith, appellant has no cause of action.” We were asked to overrule Smith. We affirm the holding in Smith. The minority would overrule Smith. The trial court followed Smith and it results that the judgment of the trial court should be, and is

Affirmed.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur. HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.

This case was considered by the entire court in general consultation on Monday, September 9, 1974, and a vote was taken. The vote required the writing of an opinion to conform to the views of the majority. On September 12, appellant filed a motion to dismiss the appeal. This motion was denied because a motion to dismiss after the court has decided a case comes too late. The fact that appellant desired to dismiss the appeal accounts for the writing of this short opinion.

All the Justices concur except JONES, J., who dissents.

Cite This Page — Counsel Stack

Bluebook (online)

300 So. 2d 823, 293 Ala. 160, 1974 Ala. LEXIS 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hembree-v-hospital-board-of-morgan-county-ala-1974.

Opinions

Related

Cite This Page — Counsel Stack