Peck v. Henderson

Decision Date04 October 1928
Docket Number8 Div. 48
PartiesPECK v. HENDERSON.
CourtAlabama Supreme Court

Rehearing Denied Oct. 25, 1928

Certiorari to Court of Appeals.

Action by J.S. Henderson against Cicero F. Peck for malpractice. Judgment for plaintiff was affirmed by the Court of Appeals (118 So. 258), and defendant applies for certiorari. Writ denied.

Brown J., and Anderson, C.J., dissenting.

C.L Peck and Tennis Tidwell, both of Decatur, for appellant.

W.W Callahan, of Decatur, for appellee.

THOMAS J.

Count 3 declared for the wrongful death of plaintiff's said minor son, and contained the averment of facts that showed a duty or relationship from which was imposed the duty, upon the defendant as to plaintiff's minor son, and, it is averred, that the breach of such duty resulted in the proximate injury and damage for which the suit is brought. Wright v. McCord, 205 Ala. 122, 125, 88 So. 150; A.G.S.R. Co. v. Ensley Co., 211 Ala. 298, 100 So. 342.

The count was not open to demurrer for duplicity, condemned by the rule of good pleading, having for its purpose the prevention of prolixity and confusion in the introduction of proof and the decision of the properly presented and litigable issues. Will's Gould on Pleading (6th Ed.) p. 401 et seq.; Richardson v. Vaughn, 208 Ala. 442, 94 So. 514.

The first count limited its averments, among other things, to the negligent or unskillful conduct of defendant in his attempt to remove the cotton seed from the ear of the plaintiff's minor son, causing the injury averred and that proximately resulted in his death. Count 3 was broader in its averments of the facts declared upon as malpractice in the premises. It was that defendant "undertook to remove a cotton seed from the ear of plaintiff's minor son," and to "treat and care for said ear after the removal of said cotton seed;" that this professional duty was negligently and unskillfully done or omitted, and as a proximate consequence of such "negligent or unskillful conduct in that regard" the child lost its life.

Are the averments of count 3, for malpractice, for "an action for malpractice is essentially for a tort and ex delicto" (Sellers v. Noah, 209 Ala. 103, 95 So. 167; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas.1912D, 863; White v. Levy, 91 Ala. 175, 80 So. 563; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Blythe v. Enslen, 203 Ala. 692, 85 So. 1; Knowles v. Blue, 209 Ala. 27, 95 So. 481; Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312), such as to present an inconsistency in that pleading?

Distinct causes of action may be joined in one complaint, but not in one count. The alternative averments employed in a count must be consistent. Worthington v. Davis, 208 Ala. 600, 94 So. 806. The authorities in this jurisdiction and at common law are collected in L. & N.R.R. Co. v. Abernathy, 197 Ala. 512, 515, 529, 73 So. 103; and trespass and case cannot be joined in the same count; each must proceed upon a single definite theory, and state a single consistent cause of action, Nat. B. & L. Co. v. Wilson, 198 Ala. 90, 95, 73 So. 436. And when a cause of action is declared by disjunctive averments, each averment must state a good cause of action (Taylor v. Lewis, 206 Ala. 338, 89 So. 581), and be consistent with the other ( B.R.L. & P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361). Separate and distinct torts inflicting separate and several injuries may be joined in the same complaint, but in separate counts. In McDougal v. A.G.S.R. Co., 210 Ala. 207, 97 So. 730, the rule having application is thus stated by the Chief Justice:

"Where there are separate and distinct torts, inflicting separate and several injuries, each furnishing a separate and distinct cause of action, and to which there may be separate and different defenses, they may be joined in the same complaint, but should be presented by separate counts."

See, also, Woodlawn Inf. Inc. v. Byers, 216 Ala. 210, 112 So. 831.

The count was not subject to demurrer; there were no separate and distinct torts, inflicting separate and several injuries, furnishing a separate and distinct cause of action, to which separate and different defenses may be made. The demurrer to count 3 is not well taken. J.P. Morgan Paving Co. v. Shoemaker, 213 Ala. 625, 105 So. 884.

The Court of Appeals passed upon the weight and effect of the evidence in considering the motion for a new trial, and its ground that the verdict and judgment rendered were against the overwhelming weight of the evidence, and applied thereto the rule that has long obtained in this jurisdiction of Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738. We cannot review the action of the Court of Appeals. Postal Tel.-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91.

Written charge A, given at appellee's request, is as follows:

"No matter how much skill Dr. Peck may have possessed, yet if he so negligently or unskillfully undertook to remove the cotton seed, or if he negligently or unskillfully treated or omitted to treat the ear, and such negligence or unskillfulness proximately contributed to the child's death, then Dr. Peck is liable."

When referred to the evidence, and under counts 1 and 3, was this a correct statement of the law, as declared by this court for malpractice? Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Talley v. Whitlock, supra.

Count 3 is as follows:

"The plaintiff claims of the defendant the sum of fifty thousand dollars ($50,000.00) as damages, for that on, to wit, October 26, 1925, the defendant was a practicing physician and surgeon in Somerville, Morgan county, Alabama, and as such undertook to remove a cotton seed from the ear of plaintiff's minor son, Leldon M. Henderson, a child of eight years of age, and to treat and care for said ear after the removal of said cotton seed, and plaintiff alleges that the defendant, in attempting to remove said cotton seed, so negligently or unskillfully probed or gouged into said ear as to rupture or lacerate the same, and did negligently or unskillfully treat or omit to treat said ear after said rupture or laceration, that, as a proximate consequence of the defendant's said negligent or unskillful conduct in that regard, said minor child's ear rose and became so infected that the said minor child lost his life."

The...

To continue reading

Request your trial
15 cases
  • Hudson v. Weiland
    • United States
    • Florida Supreme Court
    • May 8, 1942
    ... ... skill and ability.' ... The rule supra was ... adopted by the Supreme Court of Alabama in Peck v ... Henderson, 22 Ala.App. 541, 118 So. 258, 259; Id., 218 ... Ala. 233, 118 So. 262. The defendant physician was employed ... to remove a ... ...
  • McKinnon v. Polk
    • United States
    • Alabama Supreme Court
    • April 4, 1929
    ... ... Blue, 209 Ala. 27, 95 So. 481; ... Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312; ... Moore v. Smith, 215 Ala. 595, 111 So. 918; Peck ... v. Henderson (Ala. App.) 118 So. 262; Carraway v ... Smith (Ala. Sup.) 118 So. 758; Carraway v. Graham ... (Ala. Sup.) 118 So. 807 ... ...
  • Poole v. State
    • United States
    • Alabama Court of Appeals
    • February 18, 1941
    ... ... not reversing a cause upon the improper admissibility of the ... evidence." ... In our ... case of Peck v. Henderson, 22 Ala.App. 541, 118 So ... 258, 261, where on appeal the oral charge of the court was ... omitted and did not appear in the record, ... ...
  • Eubanks v. Schwalbe
    • United States
    • Texas Court of Appeals
    • December 14, 1932
    ...of a duty to the person whose death is caused thereby is within the statute, though such duty arises out of contract. Peck v. Henderson, 218 Ala. 233, 118 So. 262; 17 C. J. 1204, § 54; Blackburn's Adm'r v. Curd, 106 S. W. 1186, 32 Ky. Law Rep. 789; Randolph's Adm'r v. Snyder, 139 Ky. 159, 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT