Sellers v. Noah

• Decision Date: 04 January 1923
• Docket Number: 7 Div. 337.
• Citation: 95 So. 167,209 Ala. 103
• Parties: SELLERS v. NOAH.
• Court: Alabama Supreme Court

95 So. 167

209 Ala. 103

SELLERS v. NOAH.

7 Div. 337.

Supreme Court of Alabama

January 4, 1923

Rehearing Denied Feb. 8, 1923.

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

Action for damages by D. L. Noah against N.E. Sellers. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Affirmed.

W. C Tunstall, of Anniston, and Coleman, Coleman, Spain & Stewart of Birmingham, for appellant.

Merrill & Allen, of Anniston, for appellee.

McCLELLAN J.

The appellee was awarded a judgment for damages in his action against appellant, a surgeon, who, the complaint charges breached his contract with appellee in performing an operation for appendicitis upon appellee. The breach averred consisted in leaving a "needle or a portion of a needle" in the appellee's body.

The counts declare upon the breach of the surgeon's contract. They are not in tort; the reference to negligence therein being but descriptive of the method or means whereby the contract was breached. W. U. Tel. Co. v. Crumpton, 138 Ala. 632, 641, 36 So. 517. This construction of the counts confirms the correctness of the trial court's action in eliminating the plea of the statute of limitations of one year, applicable, upon proper occasion, to actions ex delicto. In operating upon or treating a patient a surgeon's duty is to bring to the service and to exercise "such reasonable care, diligence, and skill as physicians and surgeons in the same general neighborhood, in the same general line of practice, ordinarily have and exercise in a like case. Neither a physician nor a surgeon is an insurer of the successful issue of his treatment or service. They are responsible either ex contractu or ex delicto for failure to meet the exactions of the duty stated." Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863, and cases therein cited.

At the instance of the plaintiff the court gave the jury this special instruction, numbered 1:

"The court charges the jury that, if you are reasonably satisfied from the evidence that the defendant contracted with the plaintiff to perform an operation upon

the plaintiff for appendicitis, and that in the performance of said operation he left a part of the needle in the body of plaintiff, then the law casts upon the defendant the burden of showing that he used such reasonable and ordinary skill, care and diligence, as physicians and surgeons in the same general neighborhood and in the same general line of practice ordinarily used and exercised in such operations." Where a surgeon performing an operation leaves in the body of his subject, closing the wound, a foreign substance that causes injury or damage to the subject, the burden of proof passes to the impleaded surgeon to show that he exercised the stated reasonable and ordinary care, skill, and diligence in respect of the operation upon his subject, including the process of closing the wound. Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L. R. A. (N. S.) 611; 21 R. C. L. p. 407, § 49.

There was evidence directed to showing that a needle or a part of a needle was left in the body at the time defendant operated on him for appendicitis, and that it "worked out" about three years later, meantime causing plaintiff pain and physical disability, and that the place on the surface of plaintiff's body where the needle appeared, and from which it was removed, was very near, if not at the point where the incision was made by the surgeon. There was evidence to the contrary. If, as the quoted instruction hypothesized, the jury concluded that the needle was left in the body of the plaintiff by the surgeon at the time...