The opinion
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 quacy 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.
PER CURIAM.
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.