The opinion
Ed. F. McFaddin, Associate Justice, concurring and dissenting.
The Majority Opinion has clearly and succintly stated the three points decided in this case; and I agree with the Majority on the first two of these points, but I dissent as to the third point.
I. The first point decided by the Majority is that the Hospital here sued is a public charity under the uncontradicted evidence in this case; and I agree with the Majority on this point. This issue cannot be determined by merely showing the statute under which the Hospital was organized, nor by showing what we held concerning this same Hospital in an earlier case. The fact question is: was the Hospital a public charity at the time of the events herein concerned? The testimony was conclusive on this issue and left nothing to submit to a jury. Thus the Crossett Health Center case (Crossett Health Center v. Crosswell, 221 Ark. 874 , 256 S. W. 2d 548 ) affords appellants no support, because in the Crossett case there was an issue of fact as to the public charity, whereas there is not such issue here.
II. The second point decided by the Majority is that the Hospital, as a public charity is not liable in tort under the laws of this State. We are told that the trend of modern cases is against the immunity of hospitals in situations such as that presented in the case at bar; but any such trend 1 is for the Legislature and not for the Courts. As the writer of the opinion in Cabbiness v. City of North Little Rock, 228 Ark. 356 , 307 S. W. 2d 529 , I still adhere to the statement there contained: “ ... the rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for the Legislature, rather than the courts, to effectuate a change, if such is desired.”
III. The third point decided by the Majority is that the Hospital is not liable in contract for any of the injuries sustained by the little girl; and it is on this third point that I disagree from the Majority. The plaintiffs filed two cases: the first was in tort, and the second was in contract. 2 These two cases were consolidated in keeping with our holding in Kapp v. Bob Sullivan Chev. Co., 232 Ark. 266 , 335 S. W. 2d 819 ; and the Circuit Court dismissed both cases. I maintain that the plaintiffs were entitled to show their damages arising from breach of the contract. It is not now necessary to determine just how limited are the damages which might be recovered by appellants for breach of contract, 3 but I stoutly maintain that appellee did enter into a contract with appellant and did breach the contract and is liable for such breach of contract, quite independent of the tort action.
Our Arkansas cases recognize that there may be liability for breach of contract quite independent from liability for the commission of a tort. The opinion in the case of Arkansas Baptist College v. Weeks was delivered by this Court on March 25, 1940. It is not reported in full in the Arkansas Reports, 4 but is reported in full in 138 S. W. 2d 376 . The full text of the opinion, as copied from the files of the Arkansas Supreme Court, is attached as an appendix to this dissent. That opinion clearly recognizes the liability of a public charity in actions ex contractu. Actions for breach of contract may be based on either an express or an implied contract. When Mr. Helton entered his little daughter in the Hospital, as a paying patient, for the examination, he was required to sign an authorization for medical and surgical treatment for the cystogram and cystoscopy that was to be undertaken. He agreed to pay for services to be rendered, and certainly there was a contract. So, I am convinced that the Trial Court was in error in dismissing the action ex contractu without allowing the plaintiffs to put on their proof.
It is nothing new in Arkansas to hold that a defendant exempt from tort liability may nevertheless bo liable for breach of contract under the same state of facts. St. Paul-Mercury Indemnity Co. v. City of Hughes, 231 Ark. 530 , 331 S. W. 2d 106 , is a case in point. It is well established in Arkansas that a municipal corporation is not liable for the torts or wrongful acts of its officers. Trammell v. Town of Russellville, 34 Ark. 105 , 36 Am. Rep. 1 ; Gregg v. Hatcher, 94 Ark. 54 , 125 S. W. 1007 , 27 L. R. A. N. S. 138; Dickerson v. Town of Okolona, 98 Ark. 206 , 135 S. W. 863 , 36 L. R. A. N. S. 1194; Gabbiness v. City of North Little Rock, supra. A municipality is exempt from liability for torts just as a public charity is exempt from liability for torts: the rule is exactly the same. Tet, in the case of St. Paul-Mercury Indemnity Co. v. City of Hughes, supra, the city of Hughes had received a truck that belonged to St. Francis County and had damaged the truck, and we held that the City of Hughes could be held liable for the damages to the truck because the complaint was framed as an action ex contractu. We said:
“So we hold that the appellant as subrogee of the County could sue the City for breach of bailment contract by action ex contractu as entirely separate from a tort action. Of course, the appellant has a narrow opening through which to direct its efforts at recovery because the City is not liable in tort, as previously pointed, out. But we must conclude that the demurrer of the City should have been overruled by the Circuit Court. ’'
Thus, we have recognized that a municipality exempt, from an action in tort may be sued for damages for breach of contract on the same state of facts. The rule likewise applies to a charitable corporation, and I stoutly dissent from the Majority Opinion which holds that there can be no recovery for breach of contract in this case. I recognize that the authorities are divided as to whether a charity, though immune from tort liability, may be liable for breach of contract upon allegation of facts which would also sustain a cause of action in tort. The holdings on both sides of this question are summarized in the Annotation in 25 A. L. R. 2d 29, at page 48; and I think the better holdings are in accord with the view that there may be liability in an action for breach of contract, even though the facts alleged may also give rise to an unmaintainable cause of action in tort. I therefore respectfully dissent from that portion of the Majority Opinion which holds that there may be ho cause of action for breach of contract in this ease.
APPENDIX
Full text of the opinion of the Arkansas Supreme Court in the case of Arkansas Baptist College et al, Appellants, v. O. J. Wilson, Appellee, No. 4-5861, delivered on March 25, 1940:
“McHaney, J.
“On February 1, 1939, on the verdict of a jury, a judgment was entered in the Pulaski Circuit Court against appellants in favor of appellee in the sum of $733.68, which represented the balance of salary of appellee as teacher in appellant college, including interest to that date.
“On May 1, 1939, an execution was issued on said judgment against appellants and a levy was made on certain printing presses and other printing office equipment and machinery belonging to the college. Whereupon appellants filed in said court a petition to quash said execution ‘for the reason that the Arkansas Baptist College is a charitable corporation, incorporated under Chapter VII, Paragraphs 1788-1795 inclusive Crawford & Moses Digest” (2252 et seq. Pope’s Digest), and attached to said petition a certified copy of the articles of incorporation. It was also alleged that the property levied on is the property of said college, ‘a charitable corporation, organized and operated for charity, and not for profit or gain,’ and that the trustees, appellants other than the college, hold its property as trustees and not for themselves. The court overruled their petition to quash and they have appealed.
“For a reversal of this judgment appellants cite and strongly rely on the holding of this court in Fordyce v. Woman’s Christian National Library Assn., 79 Ark. 550 ( 96 S. W. 155 ), where it was held that ‘the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance or malfeasance of its agents or trustees.’ Headnote 4. There a public charity was sued to recover damages for personal injuries, a tort action, while here the action was to recover for services rendered based on a contract of employment. The articles of association of the college specifically confer power on the trustees ‘to acquire and hold property, sue and be sued, and contract in the corporate name ’ etc. Here it made a contract with appellee to teach school for it, a matter within the very purposes of its creation. To hold that it could thus contract and not become liable for a breach thereof, or that its property conld not be subjected to payment of a judgment for such a breach, would be to contradict the powers given it in its charter, ‘to sue and be sued,’ and to contract. “If this were an action to recover for the tort of the trustees, then appellants would be protected under the doctrine of the Fordyce case supra. But such is not the action. See Ward v. Sparks, 191 Ark. 893 , 82 S. W. (2d) 5 . A case directly in point, cited by appellee, is Hall Moody Institute v. Compass, 108 Tenn. 583 .
“The court correctly denied the petition to quash execution, and its judgment is accordingly affirmed.”
For those interested, there is a splendid Annotation in 25 A.L.R. 2d 29 , entitled, “Immunity of non-governmental charity from liability for damages in tort”; and the holdings of the various states are there listed and discussed.
Black's Law Dictionary, 4th Ed., says: “In both the civil and common law, rights and causes of action are divided into two classes — those arising ex contractu (from a contract), and those arising ex delicto (from a delict or tort). See 3 Blackstone’s Commentary 117.”
One of the legal firms in this case is Belli, Ashe and Gerry of San Francisco, and one of the members of that firm is Melvin M. Belli, who has written a Treatise on MODERN TRIALS; and Mr. Belli, in discussing medical malpractice in Volume 3, § 349, states: “In a suit on contract, the measure of damages is different than in tort. By suit on the breached promise, express or implied, there could be no recovery for pain and suffering, and the damages would be limited to the actual loss directly traceable to the breach.”
Volume 200, page 1189, of the Arkansas Reports lists the result in the case, but does not contain the opinion. For several years prior to 1943, there was a policy of omitting some opinions from the Arkansas Reports, hut this practice was discontinued in 1943, and, since the 205th Arkansas, all opinions of this Court are reported in full in the Arkansas Reports.