Lorence v. Hospital Bd. of Morgan County

JONES, Justice.

The principle issue presented by this appeal is whether governmental immunity is available to a County Hospital Board as a valid defense to an action ex delicto.

We reverse the trial Court’s order granting the motion to dismiss the tort counts. We hold that the trial Court did not err in granting the motion to dismiss the contract counts since the duty alleged is imposed solely by law and its alleged breach is tortious only. Accordingly, we affirm in part and reverse in part and remand for further proceedings not inconsistent with this opinion.

Inasmuch as this cause on remand is yet to be tried, the issue presented having reached this Court on the pleadings, we deem it inappropriate to discuss in detail the facts as alleged in the complaint. Suffice it to say, Ralph Camenron Lorence alleges that he suffered damages due to the negligence of .an employee of the Hospital Board of Morgan County while acting within the line and scope of his employment.

Our consideration of this issue poses an almost overwhelming compulsion to review in depth the history — both legislative and judicial — as well as the philosophical evolution, of this legal precept. Because of the voluminous and exhaustive treatment previously accorded this entire field of law,¹ however, such an in depth analysis is neither desirable nor necessary. Our decision this date released in Jackson v. City of Florence, 294 Ala. -, - So.2d -, abolishing the defense of sovereign immunity as to municipalities, compels the same result, founded on the same rationale, with respect to counties. Jackson held that municipal immunity, in actuality, was abolished by the legislature in 1907; and, since the “governmental/proprietary” distinction was court made, it was up to the courts to change the law to conform with the clear intent expressed by the legislature.

The bridge between Jackson (cities) and Lorence (counties) is necessarily dependent upon an affirmative reply to two questions. First, does the legal status of a municipality equate that of a county? Otherwise stated, do both fall equally within the legislative prerogative with respect to the right to sue and be sued? The answer is “yes.”

Neither is the creation of the Constitution; both are creatures of statute. The fact and nature of their respective existence, as well as the duties, powers, and limitations, are governed solely by legislative mandate. The only distinction between the two entities is wholly immaterial to our inquiry — the city is a voluntary political unit within the state while the county is an involuntary political subdivision of the state. Jones v. Jefferson County, 206 Ala. 13, 89 So. 174 (1921); Askew v. Hale County, 54 Ala. 639 (1875).

The remaining question, then, is whether the legislature has exercised its prerogative with respect to county liability in like manner as to city liability? Here, again, as in Jackson, the answer is “yes.” The legislature has expressed its prerogative in this regard through its passage of the following statutes:

Tit. 12, § 3. “Every county is a body corporate, with power to sue or be sued in any court of record.”

Tit. 7, § 96. “Suit must not be brought against a county until the claim has been presented to the court of county commissioners or other similar governing body, and disallowed or reduced by the court, and the reduction refused by the claimant. The failure or refusal of such court or other similar governing body, to enter upon its minutes the disallowance or reduction of the claim for ninety days is a disallowance. Proof of the fact of presentation of such claim to such court of county commissioners or other similar governing body may be made by parol evidence.”

Tit. 12, § 115. “No claim against the county shall be passed upon or allowed by the court of county commissioners unless it is itemized and sworn to by the claimant, or some person in his behalf having personal knowledge of the facts; and all claims passed upon and allowed, according to this section, must be entered in the order in which they were allowed in a book kept for that purpose and filed for future reference, within two weeks after the term at which such allowances were made; and the testimony required in the allowance of a claim must show whether or not any part thereof has been previously paid. This section shall not apply to bonds and interest or interest coupons thereon, that have been lawfully issued by the county.”

As Justice Thomas observed in Calhoun County v. Brandon, 237 Ala. 537, 187 So. 868 (1939), in recognition of these legislative expressions, “A county is given the right to sue and be sued, as are individuals.”

Just as in the case of municipalities, the court, in spite of clear legislative language to the contrary, persisted in perpetuating the “King can do no wrong” thesis. Out of this jungle of court made law emerged the perverted interpretation that what the legislature really meant by the expression “with power to sue or be sued” was to subject the county to suits sounding in tort only when it was performing an act specifically authorized by the legislature and where liability was expressly imposed by the statute; and that a county was immune from suits in any case involving the exercise of their governmental functions. Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762 (1957); Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542 (1947).

While it is true that the legislature has not subsequently exercised its prerogative, with regard to counties, to expressly provide that they may be sued for the negligence of their agents, servants, and employees while acting within the scope of their authority, as it has done with regard to municipalities, the legislative equivalent was exercised with regard to counties in the establishment of county hospital boards. Tit. 22, § 204(24), Code of Alabama 1940 (Recomp.1958), was passed by the legislature in 1949. It expressly provides that county hospital boards are empowered “to sue and be sued and to defend suits against it [and] to provide for such insurance as the corporation may deem advisable.”

We believe it is clear that the legislature had no intention to limit such suits to actions sounding in contract. Had it so intended, it could have so provided. This it did with regard to municipal hospitals by expressly providing that they are empowered “to sue others and to prosecute suits; to be sued by others in any form of litigation other than an action ex' delicto."² (Emphasis supplied.) No such limitation appears in the legislative language contained in Tit. 22, § 204, which authorizes the creation and operation of county hospital boards.

We are not to be understood as saying that our holding would be different had the statute been silent as to the right of the county hospital board to be sued. Neither this question nor the question of the county’s general liability is before us. What is before us is the immunity question with respect to county hospital boards; and because the statute authorizing such corporate entity expressly provides for suits against them, Jackson, in its holding and rationale, compels a like conclusion.

We overrule Garrett v. Escambia County Hospital Board, supra, and Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So.2d 583 (1969). We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.

The quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.

One day through the primeval wood A calf walked home, as good calves should; But left a trail all bent askew, A crooked trail, as all calves do.

Since then, three hundred years have fled, And, I infer, the calf is dead. But still he left behind this trail, And thereby hangs my moral tale.

The trail was taken up next day By a lone dog that passed that way; And then a wise bell-wether sheep Pursued the trail o’er vale and steep, And drew the flock behind him, too, As good bell-wethers always do. So from that day, o’er hill and glade, Through those old woods a path was made,

And many men wound in and out, And bent and turned and dodged about, And uttered words of righteous wrath, Because ’twas such a crooked path;

But still they followed — do not laugh— The first migrations of that calf, And through this winding woodway stalked Because he wabbled when he walked.

This forest path became a lane, That bent and turned and turned again; This crooked lane became a road, Where many a poor horse, with his load,

Toiled on, beneath the burning sun, And traveled some three miles in one. And thus a century and a half They trod the footsteps of that calf.

The years passed on with swiftness fleet, The road became a village street, And this, before men were aware, A city’s crowded thoroughfare.

And soon the central street was this Of a renowned metropolis. And men two centuries and a half Trod the footsteps of that calf.

Each day a hundred thousand rout Followed the zigzag calf about; And o’er his crooked journey went The traffic of a continent.

A hundred thousand men were led By one calf near three centuries dead. They followed still his crooked way, And lost one hundred years a day;

For thus such reverence is lent To well-established precedent. A moral lesson this might teach, Were I ordained and called to preach. For men are prone to go it blind Along the calf-paths of the mind, And toil away from sun to sun To do what other men have done.

They follow in the beaten track, And out and in, and forth and back, And still their devious course pursue To keep the path that others do.

But how the wise old wood-gods laugh, Who saw the first primeval calf ! Ah! many things this tale might teach; But I am not ordained to preach.³

Also, consistent with our holding in Jackson and Harris v. Board of Water and Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So.2d 624 [this date released], we accord to our holding in this opinion quasi prospective application; i. e., relief is afforded the instant plaintiff and all others similarly situated who incur injury or damage from this date hence.

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

FAULKNER and SHORES, JJ., concur. BLOOD WORTH and ALMON, JJ., concur in the result. EMBRY, J., concurs in part and dissents in part. HEFLIN, C. J„ and MERRILL and MADDOX, JJ., dissent.

1 . Notably among the textwriters, see Borchard, Government Liability In Tort, 34 Yale L.J. 1 (1924), and Copeland and Screws, Governmental Responsibility for Tort In Alabama, 13 Ala.L.Rev. 296 (1961).

2 . Tit. 22, § 204 (41h).

3 . Stevenson, The Home Book of Verse, Henry Holt & Co., N.Y., 7 ed., 1940, at p. 1896.