# Green v. Hospital Building Auth. of City of Bessemer > Supreme Court of Alabama · August 21, 1975 · 294 Ala. 467 URL: https://www.frixlaw.com/law-library/cases/9689790 ## Case - **Full name:** Annie Mae GREEN v. the HOSPITAL BUILDING AUTHORITY OF the CITY OF BESSEMER, a Public Corporation - **Court:** Supreme Court of Alabama - **Decided:** August 21, 1975 - **Citations:** 294 Ala. 467; 318 So. 2d 701; 1975 Ala. LEXIS 1228 - **Precedential status:** Published - **Opinion:** Dissent by Embry - **Judges:** Almon, Merrill, Bloodworth, Maddox, Faulkner, Jones, Shores, Embry, Heflin - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689790 ## Opinion text EMBRY, Justice (dissenting) : I respectfully dissent. The opinion of my brother Almon is capsulated in the sentence therein: “ * * * While some of the language in our decisions on the subject of contracts implied in law is not always uniform, the result of those decisions is to the effect that the law will not imply a promise on the part of a hospital' to use due care. * * *” In support, principle reliance is placed on Garig v. East End Memorial Hospital, 279 Ala. 118 , 182 So.2d 852 (1966) and authorities discussed therein. The error of such reliance is found in the very next sentence following the above quote: “We think the wiser course is to refrain from disturbing the well established line of cases which have refused to imply a promise where none actually exists.” However, a perusal oí Garig shows that there this court was considering whether there was such an implied promise in the contract: “ * * * In the absence of express terms to this effect in the contract, such terms will not be implied.” Id. at 121 , 182 So.2d at 855 . (emphasis added) Garig did not give sufficient consideration to quasi or constructive contracts. In the case of quasi contract the duty imposed by law implies the contract. Thus, by its decision today, the majority leaps from the holding of Garig that its facts would not support a finding of a duty under the contract to a broad and general holding that a hospital is under no duty to use due care under an implied contract. Under a quasi or constructive contract, the terms of which are imposed (implied) by law it has that duty. My views concerning use of quasi contract as a theory upon which to base an ac *472 tion ex contractu have recently been expressed in Lorence v. Hospital Board of Morgan County, 294 Ala. 614 , 320 So.2d 631, 1975 . This is a duty implied apart from the express contract between patient and hospital, or from one implied in fact based on the conduct of the parties (actual or tacit consent). The breach of such a duty is capable of remedy by an action ex contractu. Historically the action would be in assumpsit for restitution in order to make reparation to one for loss or injury previously inflicted. The breach of duty imposed by law may be tortious or a tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof. The remedy is at the election of 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). The following from Am.Jur.2d is the most clear expression of the differences between express contracts, implied contracts and quasi or constructive contracts: “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). One further observation. Under our system of pleading, failure to allege the specific terms of a contract implied (imposed) by law (quasi or constructive contract) can have no effect on the substantive law which, in my view, defines the legal duties imposed upon the Hospital Building Authority. Those duties are of a contractual nature. For breach of these duties in this case plaintiff has a remedy ex contractu. The defined legal duties (contract terms) are to use due care in and about providing the lodging, food, nursing, treatment, care, medications, supplies and other services (including attendance from one place to another in the hospital) incident to hospitalization in skillfully operated hospitals. HEFLIN, C. J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689790. Public record. Not legal advice.