Bodne v. Austin

Decision Date06 February 1928
Citation2 S.W.2d 104
PartiesBODNE v. AUSTIN.
CourtTennessee Supreme Court

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by M. Bodne against Dr. J. L. Austin. From judgment sustaining demurrer to his declaration, plaintiff appeals in error. Affirmed.

L. Turney and M. N. Whitaker, both of Chattanooga, for plaintiff in error.

Strang & Fletcher, of Chattanooga, for defendant in error.

J. M. Anderson, McGugin, Evans & Cate, and A. W. Stockell, Jr., all of Nashville, amici curiæ.

SWIGGART, J.

This appeal in error is by the plaintiff from the action of the circuit court in sustaining a demurrer to both counts of plaintiff's declaration, and thereby holding that the action stated in each count is barred by the statute of limitations of one year. Section 4469 of Shannon's Code (Code of 1858, § 2772).

The first count of the declaration avers that the plaintiff accompanied his wife, Mrs. Mollie Bodne, to the office of the defendant, and retained and employed defendant to extract his wife's teeth, and to make and fit a set of false teeth; that, pursuant to the contract of employment thus made, the defendant extracted the teeth of plaintiff's wife in such a careless, negligent, and unskillful manner that he left a root of a tooth in her mouth, and subsequently treated, cured, and healed her gums without removing the root or part of a tooth.

The declaration avers that, as a result of this breach of duty on the part of defendant, the plaintiff's wife became affected with a serious malady, and has become a permanent invalid, suffering great pain and distress.

It is averred that the plaintiff has expended large sums of money for doctors' fees, hospital and medicine bills and traveling expenses, in an effort to ascertain the cause of his wife's illness and to cure the same; that the cause was finally discovered and the tooth removed.

It is averred that the removal of the teeth was undertaken by the defendant on or about June 1, 1916, and that the presence of the portion of a tooth negligently left in the mouth was not discovered until January 5, 1925; that the several matters stated resulted in the plaintiff's damage in the sum of $10,000, for which he sues.

The second count of the declaration is a repetition of the complaint stated in the first count, with the exception that the contract of employment is not referred to.

It is averred that the defendant's failure to remove the portion of the tooth which caused the illness of his wife "was a continuing negligence," and that the tooth was negligently permitted by the defendant to remain in the mouth of plaintiff's wife upon each and every day subsequent to the operation; that the defendant carelessly and negligently failed to disclose the fact to plaintiff's wife. The injuries complained of are thus described in the second count as having resulted from said "continuing carelessness and negligence of the defendant," which remained undiscovered until January 5, 1925, notwithstanding diligence on the part of plaintiff and his wife.

In the companion case of Mrs. Mollie Bodne v. Dr. J. L. Austin, 2 S. W. (2d) 100, this day decided in an opinion delivered for the court by Mr. Justice Chambliss, it is held that the cause of action stated in the declaration is within the application of the statute of limitation pleaded.

There remains for consideration plaintiff's contention that the declaration states a cause of action arising within the period of one year prior to the beginning of the suit.

The suit was commenced by the issuance of summons on March 6, 1925. The declaration avers that the operation for the removal of the teeth of plaintiff's wife was performed on or about the 1st day of June, 1916, and that the fact that a portion of a tooth had been left in the mouth was first discovered on or about January 5, 1925.

The first count of the declaration avers that the defendant carelessly and negligently treated and healed the gums of plaintiff's wife without removing the portion of a tooth, and that he negligently and carelessly failed to notify plaintiff that the broken tooth...

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20 cases
  • Billings v. Sisters of Mercy of Idaho, 9382
    • United States
    • United States State Supreme Court of Idaho
    • January 24, 1964
    ...we may infer any intentional fraudulent misrepresentation of fact as to the presence of a tooth in the lung * * *.' In Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928), plaintiff alleged that the defendant negligently left a broken tooth in her gum and that he carelessly and negligently ......
  • Wyler v. Tripi
    • United States
    • United States State Supreme Court of Ohio
    • February 24, 1971
    ...508; DeLong v. Campbell (1952), 157 Ohio St. 22, 104 N.E.2d 177; Hinkle v. Hargens (1957), 76 S.D. 520, 81 N.W.2d 888; Bodne v. Austin (1928), 156 Tenn. 366, 2 S.W.2d 104 (see, also, Albert v. Sherman (1934), 167 Tenn. 133, 67 S.W.2d 140); Murray v. Allen (1931), 103 Vt. 373, 154 A. 678; Ha......
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals
    • April 17, 1969
    ...363, 98 S.E.2d 508; DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177; Hinkle v. Hargens, 76 S.D. 520, 81 N.W.2d 888; Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104; Murray v. Allen, 103 Vt. 373, 154 A. 678; Hawks v. DeHart, 206 Va. 810; Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724; Lo......
  • In re Edge
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Middle District of Tennessee
    • May 9, 1986
    ...action for medical malpractice accrued for statute of limitation purposes at the time of the negligent act. See, e.g., Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928). In Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), the Tennessee Supreme Court abandoned a half-century of precedent and......
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