Crossett Health Center v. Croswell

• Decision Date: 30 March 1953
• Docket Number: No. 4-9989,4-9989
• Citation: 256 S.W.2d 548,221 Ark. 874
• Parties: CROSSETT HEALTH CENTER v. CROSWELL.
• Court: Arkansas Supreme Court

Page 548

256 S.W.2d 548

221 Ark. 874

CROSSETT HEALTH CENTER v. CROSWELL.

No. 4-9989.

Supreme Court of Arkansas.

March 30, 1953.

Rehearing Denied April 27, 1953.

Leffel Gentry, Little Rock, for appellant.

A. James Linder, Hamburg, Switzer & Switzer, Crossett, for appellee.

GRIFFIN SMITH, Chief Justice.

Appellee as a patient at Crossett Health Center was operated upon July 6, 1948. Intestinal adhesions and other ailments were encountered. Steel wire was used in closing the operational wound. Discomfort resulted to such an extent that an effort was made to remove the wire. Pain and general debility continued. The Health Center treatment was unsatisfactory and in consequence of what the patient said was a refusal of the Center to further cooperate she went to Louisiana. At Bastrop Dr. J. N. Jones operated. He removed a small piece of the suture wire from an intestine, but testified that it had not fully penetrated, hence serious infection such as peritonitis had not developed. It was Dr. Jones' belief that the persistent pain experienced by the patient could have been caused by the wire, and very probably was.

Mrs. Croswell sued for $130,885.85--thirty thousand for pain and suffering, $50,000 because as a result of the mistreatment she became a drug addict, $50,000 to compensate humiliation because of arrest by federal narcotic agents, conviction, and a three-year suspended sentence, and $885.85 for medical and hospital expenses. From a judgment for $1,885.85 the Health Center has appealed.

The operation for removal of wire occurred August 8, 1948. The original complaint was filed April 30, 1951, and in order to avoid application of the two-year statute of limitations raised by demurrer, an amendment was filed July 7, 1951, alleging that the faulty work had been concealed.

Dr. W. R. Cothern, who assisted the director-surgeon with the operation, was named as a co-defendant, but the jury found in his favor. It is insisted on appeal (1) that the court erred in not sustaining the defendant's demurrer, which was renewed after the amendment was filed, and (2) the Health Center is a benevolent and charitable association and is not answerable for the torts of its agents.

First--The Statute of Limitation.--Act 58 of 1945, Ark.Stats. § 37-205, reads: 'All actions of contract or tort for mal-practice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanataria, shall be commenced within two (2) years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.'

We have said in effect that fraudulent concealment will toll the statute, although the case in which the language was used held that the action was barred. See Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754, decided under Act 135 of 1935, which allowed three years.

Admittedly the operation in the case at bar was performed more than two years before suit, hence the demurrer should have been sustained unless conduct amounting to fraudulent concealment prevented appellee, as a reasonable person from knowing that some of her continuing ills were traceable to appellant's failure to remove the wire.

The Act of 1935 fixed the time of accrual of the cause of action as the 'date of the wrongful act complained of and no other time.' Regardless of this language, construction given the Act in the Steele-Gann case recognizes an exception where fraudulent concealment has prevented the injured person from seeking redress. The identical sentence found in Act 135 of 1935 is in the enactment of 1945.

Dr. Cothern testified that the last time he saw Mrs. Croswell was March 21, 1949. At that time the following indorsement was made: 'Pain in the abdomen; temperature 99; abdomen distended, but is soft with no definite areas of tenderness'. This date substantially coincides with statements by Mrs. Croswell that she was refused readmittance to the Health Center; and, inferentially, this refusal continued until other physicians were consulted.

A comparatively modern case (1931) dealing with fraudulent concealment is Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633. There, as here, a demurrer was overruled and the defendant appealed. The gist of the opinion is that when, through fraudulent concealment of the tort-feasor, a party against whom a cause of action exists prevents the person alleging injury from obtaining knowledge thereof, the statute of limitation will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence. 'This', says the opinion of Chief Justice Wilson, 'is the rule apart from any statute.'

To the same effect is Johnson v. Nolan, 105 Cal.App. 293, 288 P. 78, and other cases cited in 74 A.L.R. 1317. See, also, Hotelling v. Walther, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 209, Oklahoma Tax Comm., 193 Kol. 271, 143 P.2d 143, 151 A.L.R. 1035.

Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503, 505, is to the point. There an abdominal operation was performed and the surgeon negligently left a ball of gauze within the cavity. In holding that an action brought seven years later was not barred as a matter of law, it was said:

'* * * appellee's acts of leaving the ball of gauze in appellant's abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.'

The opinion also called attention to the fact that by its demurrer the appellee had admitted negligence. In the case at bar an answer was filed after the demurrer to the amended complaint had been overruled, hence the cause was tried on its merits rather than upon admissions of the demurrer.

Our conclusion is that there was sufficient evidence of appellant's failure to exercise appropriate diligence to ascertain why the patient's suffering continued, therefore the issues were properly presented to the jury. That the wire could have been found is attested by the fact that Dr. Jones discovered it without unusual difficulty, and it is fairly inferable that its existence would have been disclosed by X-ray.

Second--Claim of Immunity as an Institution of Charity.--We have held that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. Woman's Christian National Library Association v. Fordyce, 79 Ark. 532, 86 S.W. 417, and Fordyce v. Woman's Christian National Library Association, 79 Ark. 550, 96 S.W. 155, 7 L.R.A.,N.S., 485. The last case was distinguished in Morris v. Nowlin Lumber Co., 100 Ark. 253, 268, 140 S.W. 1. The Library Association permitted a judgment to go against it on a claim predicated upon negligence of its trustees. The decision, written by Special Judge U. M. Rose, is that the Association's property could not be sold under the execution for the nonfeasance, misfeasance, or malfeasance of its agents or trustees. A public charity is a public trust, 'and is bound to apply its funds in furtherance of the charity, and not otherwise. * * * To give damages out of a trust fund would not be to apply it to those objects which the author of the fund had in view, but would be to divert it to a completely different purpose.' [79 Ark. 550, 96 S.W. 160.]

In Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, 135 S.W. 917, 921, 34 L.R.A.,N.S., 317, we held for the appellant railroad company on the proposition that where it gratuitously assumed to collect and preserve a fund deducted from the salaries and wages of its employes and to provide hospital accommodations and medical attention for its injured personnel, without any profit or gain, such company would not be responsible for the negligence of physicians and surgeons employed at the hospital, provided it used ordinary care in their selection. On the other hand, it was stated that the railroad company was not conducting a charity, 'for only those employes who had contributed the fees deducted from their wages for its maintenance were entitled to enter there for treatment, [and] * * * certainly the railroad company that assumed gratuitously to collect and preserve such fund and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain or hope thereof therefrom, should not be required to pay damages for such negligence or malpractice; it being no part of its business under its charter to maintain a hospital. At most it can only be considered a trustee for the proper administration and expenditure of such fund, and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief and provide attention to sick and injured employes.'

Crossett Health Center was created under authority of §§ 2252 to 2259 of Pope's Digest, now § 64-1301 et seq., Ark.Stats. The preamble to its articles of incorporation expresses interest of Crossett Lumber Company in the hospital and health facilities of Crossett and Ashley county and the surrounding territory. The lumber company was willing to make substantial contributions toward the realization of these ends, having indicated that with the organization of a benevolent agency devoted to such objects it would donate lands for a hospital site and give to the organization 'the present furnishings of its privately owned hospital in Crossett, together with a sum of money'. It was 'particularly provided' that the incorporated association should have and exercise the powers conferred by §§ 6 and 7 of the Act of February 3, 1875. These sections, copied here in a single paragraph, are: 'Any such corporation shall have power to raise money...