Silvertooth v. Shallenberger
| Docket Number | 23481. |
| Decision Date | 19 April 1934 |
| Citation | 174 S.E. 365,49 Ga.App. 133 |
| Parties | SILVERTOOTH v. SHALLENBERGER. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Suit for loss of wife's services is governed by four-year limitation governing injuries to personalty (Civ. Code 1910 §§ 4412, 4496).
Mere ignorance of facts constituting cause of action does not prevent running of statute of limitations.
Fraud tolling statute must involve moral turpitude and debar or deter plaintiff from his action (Civ. Code 1910, § 4380).
Statute running against suit based on defendant surgeon's alleged malpractice in leaving needle in patient held not tolled, on theory of knowledge involving moral turpitude of surgeon, where petition alleged surgeon knew operation was negligently performed and with proper care would have subsequently discovered needle, but did not allege surgeon's knowledge of presence of needle (Civ. Code 1910, §§ 4380, 4412, 4496).
Test for determining when statute of limitations begins against tort action is whether act causing damage is an invasion of plaintiff's right.
If the act complained of does not in and of itself constitute an invasion of some legal right, but a recovery is sought only on account of damage subsequently accruing from and consequent upon an act not in itself tortious, the cause of action will be taken to accrue and the statute to begin to run only when the resultant damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to plaintiff and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time such an act is committed, however slight the damage then may be.
Petition for loss of wife's services from surgeon's alleged malpractice in leaving needle in wife's abdomen and failing to discover needle during subsequent treatment of wife held not barred by limitations, although alleged malpractice occurred more than four years before since action could be maintained for alleged negligence in subsequent treatment during any part of four years prior to institution of action (Civ. Code 1910, §§ 4412, 4496).
Statement in one count of two or more causes of action is not ground for dismissal on general demurrer.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by J. F. Silvertooth against W. F. Shallenberger. To review a judgment dismissing the suit on general demurrer, plaintiff brings error.
Reversed.
Statement of facts by JENKINS, Presiding Judge:
The plaintiff, on February 16, 1933, brought an action in tort against the defendant to recover damages for loss of services, and for hospital and doctor's bills of his wife, because of the alleged negligent leaving of a surgeon's needle in her body after an operation for appendicitis, and the alleged subsequent failure to make an X-ray or other proper examination so as to ascertain the presence of the needle and then to remove it during his continuous subsequent treatment of the patient. The petition brought in one count, alleged that the operation was performed and the needle used in closing or suturing the incision was left in the body of the wife on August 9, 1926; that instead of normally recovering, she became shortly thereafter extremely nervous, suffered continually excruciating pains in her abdomen, intestinal tract, urethra, and bladder, the infected abdomen discharging pus continually into her blood stream; that she remained under the continuous professional care and treatment of the defendant from the date of the operation until February, 1932, when, after consulting another physician and an X-ray examination by him, the presence of the needle was discovered for the first time, and it was then removed; that in November, 1931, the defendant strapped the side of the wife, but made no further examination of her condition; that in February, 1932, the wife again told the defendant that something was radically wrong with her, and she and the plaintiff requested that he make an X-ray and such other examinations as necessary to determine the cause of her physical troubles, but that the defendant declined to do so, and stated that in his opinion she had colon and stomach trouble. The petition charges negligence not only in the original failure to remove the needle, but also in the subsequent treatment and care of the wife during each of the years preceding the filing of the suit, in failing and declining when often requested to make an X-ray and other proper examinations, and in improperly and wrongly diagnosing the source of her pain as a misplaced colon, and failing by operation to remove the needle. Although it is alleged that the defendant during the time of his treatment knew that the wife's condition "was the result of his negligence and improper performance of the operation upon her for appendicitis," it is in no wise stated that the defendant had actual knowledge of the presence of the needle in her body, but on the contrary such knowledge is negatived by other allegations as to negligence in failing to make an X-ray examination and to otherwise ascertain the presence of the needle.
Paragraph 40 of the petition summarizes the averments of negligence, as follows: ...
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