reproducing a poem by Sam Walter Foss to illustrate the absurdity of blindly following precedent and stating: “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.”
How later courts described this case
- reproducing a poem by Sam Walter Foss to illustrate the absurdity of blindly following precedent and stating: “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.”
- reproducing a poem by Sam Walter Foss illustrating the dangers of blindly following precedent
- involving a county hospital board
Written by the judges who cited it.
The opinion
EMBRY, Justice
(concurring in part, dissenting in part) :
I concur in the result to reverse in part and remand this case for further proceedings not inconsistent with the opinion of Justice Jones. I am compelled to disagree, in measure, with some of the reasons for reversing the trial court’s order granting the motion to dismiss the count sounding in tort. In totality, I am at odds with approving dismissal of the count based on contract.
The decision of this court in Jackson v. City of Florence, 294 Ala. 592 , 320 So.2d 68 , is both accurate and soundly reasoned. That decision analyzed and gave proper legislative intent to Code of Ala., Tit. 37, § 502.
My brother Jones accurately states that the legislature provided in Code of Ala., Tit. 12, § 3, that “Every county is a body corporate, with power to sue or be sued in any court of record.” It should be pointed out that this action is against “The Hospital Board of Morgan County, Alabama, A Public Corporation, et al.” Is this, then, an action against the County of Morgan or rather one against a public corporation organized by that county pursuant to authority of the legislature found in Code of Ala., Tit. 22, Article 5, §§ 204(18)-204(30) ? In my view it is the latter and therefore amenability to suit, ex contractu (express, implied by law or implied in fact) or ex delicto is bottomed on proper interpretation of Code of Ala., Tit. 22, § 204(24). That amenability to suit is expressed clearly in *620 the cited code section. No claim is necessary as a condition precedent to suit as required in an action against a county per Tit. 7, § 96. As a county enjoys no immunity from suit neither does this hospital board, but no claim is required in this instance.
Here I record my dissent with the opinion where it holds that the trial court did not err in granting the motion to dismiss the contract counts. The breach of duty imposed by law may be tortious or tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof and the remedy is a matter of election by the party complaining of the wrong which resulted in injury. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344 , 62 So.2d 459 (1952); Sellers v. Noah, 209 Ala. 103 , 95 So. 167 (1923).
“Both express contracts and contracts implied in fact are based on consent. Evidently, in view of the fact that these . are the contracts which are usually before the courts, it has been said that there is no contract without the consent of the parties. Clearly, however, such an observation must have been made without regard to the existence of certain legal duties which, though of a contractual nature, are not based on consent. These are sometimes spoken of as contracts implied in law, but are more properly called quasi-contracts or constructive contracts. They are contracts in the sense that they are remediable by the contractual remedy of assumpsit. In the case of such contracts, the promise is purely fictitious and is implied in order to fit the actual cause of action to the remedy. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. The intention of the parties in such case is entirely disregarded, while in cases of express contracts and contracts implied in fact the intention is of the essence of the transaction. As has been well said, in the case of actual contracts the agreement defines the duty, while in the case of quasi-contracts the duty defines the contract.” 66 Am.Jur.2d, Restitution and Implied Contracts, § 2, pp. 942-943; Broyles v. Brown Engineering Co., 275 Ala. 35 , 151 So.2d 767 (1963); Cowan v. Martin & Huckaby, 246 Ala. 378 , 20 So.2d 769 (1945).