Steele v. Gann

• Decision Date: 09 January 1939
• Docket Number: 4-5317
• Citation: 123 S.W.2d 520,197 Ark. 480
• Parties: STEELE v. GANN
• Court: Arkansas Supreme Court

123 S.W.2d 520

197 Ark. 480

STEELE v. GANN

4-5317

Supreme Court of Arkansas

January 9, 1939

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; affirmed.

Judgment affirmed.

Ben D. Brickhouse and Linwood L. Brickhouse, for appellant.

John Sherrill and Frank Wills, for appellee.

OPINION

MEHAFFY, J.

This action was commenced by appellant who filed in the circuit court the following complaint:

"Comes the plaintiff and for cause of action herein states: That on March 29, 1926, defendant performed an operation on plaintiff for gall stones and for hernia, in the city of Little Rock Arkansas, at St. Vincent's Infirmary. That seven or eight weeks after said operation plaintiff began suffering pains in the region of the gall bladder, which suffering continued almost constantly from then until the date of plaintiff's re- operation on March 26, 1936. That in September, 1935, plaintiff suffered a physical and nervous breakdown due to constant suffering, ill health and worry over her physical condition. Plaintiff was in such a weakened condition that re-operation at the time of her collapse was not advisable. After six months of nursing and confinement to bed the second operation was performed on plaintiff in the gall bladder region to discover the cause of plaintiff's suffering. This operation was performed at St. Edwards' Infirmary in the city of Fort Smith, Arkansas, on March 26, 1936; That upon entering the region of the gall bladder, where the gall bladder should have been, there was encountered an enlarged abscessed mass about the size of a small orange. The mass was covered by omentum, and the walls of same were definite, distinct and movable. In the process of removing this mass an old puss-soaked gauze sponge exuded from a rupture therein. This mass developed to be the gall bladder of plaintiff in a swollen, abscessed and decayed condition. That said gauze sponge had been left in the gall bladder or the cavity enclosing same by the defendant at the time he operated on or dressed plaintiff's wound March 29, 1926. The existence of the foreign matter in the wound of the gauze sponge caused the abscess and decay of the gall bladder, the processes of nature covering the affected party by omentum preserving said sponge until its discovery in 1936.

"That the leaving of said gauze sponge in the gall bladder or the gall bladder area by the defendant was due to the careless and negligent conduct of said operation by the defendant or those under his direction. That as a result of such negligence and carelessness aforesaid plaintiff endured almost constant pain from 1926 to 1936. That since the removal of the abscessed mass from plaintiff at the time of the second operation plaintiff has been relieved of the pain suffered in the gall bladder region and has in some measure regained a semblance of health, but the impaired condition of her entire system due to the absorption of pus over the long period of years, had permanently injured her health. Arthritis has developed in both arms and shoulders and will continue to exist during the rest of her natural life. Plaintiff is without strength with which to perform her normal household duties and is forced to, and has been since the beginning of her last trouble in 1926, employing household help.

"That during the period of illness caused by defendant's negligence in 1926 until and including the operation in March, 1936, plaintiff has expended large sums of money in doctors, hospital, nursing and medical bills. That by reason of the physical pain and suffering, including the second operation, mental anguish and financial expenses caused plaintiff in the past and the pain, suffering and general ill health which she will suffer for the rest of her life by reason of the carelessness and negligence of the defendant as hereinbefore alleged, plaintiff has been damaged in the sum of forty thousand ($ 40,000) dollars.

"Wherefore, plaintiff prays judgment against the defendant in the sum of forty thousand ($ 40,000) dollars, together with all costs herein expended."

The appellee filed the following demurrer:

"The defendant, with permission of the court, withdraws its answer heretofore filed in this case and demurs to the complaint of plaintiff, because same shows upon its face that it is barred by the statute of limitations."

The court sustained the demurrer, and appellant refused to plead further, and the complaint was dismissed. The court, in sustaining the demurrer, held that the cause of action was barred by act 135 of the Acts of 1935, which reads as follows:

"An Act to Provide a Definite Statute of Limitations Relative to All Actions of Contract or Tort Arising Out of Malpractice of Physicians, Surgeons, Dentists, Hospitals and Sanitaria.

"Be It Enacted by the General Assembly of the State of Arkansas.

"Section 1. Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within three years after the cause of action accrues. The time of the accrual of the cause of action shall be date of the wrongful act complained of and no other time.

"Section 2. All laws or parts of laws in conflict herewith are hereby repealed and this act shall take effect and be in force from and after its passage."

The appellant contends that the legislature intended the act to mean that the law existing at the time of the passage of the statute to the effect that a person wronged has three years from the time of discovery of the wrong in which to bring his suit was being changed to read that from henceforth or "thereafter" the action must be brought within three years from the time of the commission of the wrongful act regardless of the time of the discovery. It is contended that the appellant would have three years from the date of the passage to bring suit, and she cites and relies on the case of Baldwin v. Cross, 5 Ark. 510. The court stated in that case that prior to the passage of the act which the court then construed, there was no statute in force in the territorial government as to limitations upon foreign judgments, and that all demands existing when the act went into operation must be sued for within the time prescribed, or they would be barred. But the court also said in that case: "No statute can be construed...