Albert v. Sherman

• Decision Date: 13 January 1934
• Citation: 67 S.W.2d 140
• Parties: ALBERT v. SHERMAN.
• Court: Tennessee Supreme Court

67 S.W.2d 140

ALBERT v. SHERMAN.

Supreme Court of Tennessee.

January 13, 1934.

Appeal from Circuit Court, Shelby County; M. R. Patterson, Judge.

Suit by J. S. Albert against Dr. N. W. Sherman. Judgment for defendant, and plaintiff appeals.

Affirmed.

Joseph Hanover and C. L. Marsilliot, both of Memphis, for appellant.

Chas. L. Neely, of Memphis, for appellee.

GREEN, Chief Justice.

This is a suit to recover damages for negligence with respect to the performance of a dental operation. It was dismissed by the trial judge on demurrer upon the ground that it was barred by section 8595 of the Code providing that actions for injuries to the person must be commenced "within one year after cause of action accrued."

The suit was brought February 15, 1933. The substance of the declaration is that the defendant is a practicing dentist in Memphis, and was employed by the plaintiff on October 10, 1930, to extract a tooth, and to render the professional services incident to the operation, and that defendant did undertake said operation on the date last mentioned; that the operation was performed in a negligent and unskillful manner, so as to leave part of the root of the extracted tooth in the plaintiff's gum, without plaintiff's knowledge; that the gum healed promptly without indication at the time that the tooth had not been wholly extracted. The declaration continued:

"That no damage or injury accrued to plaintiff because of the negligence of the defendant in so carelessly and unskillfully leaving said part of said root of said tooth in the gum of the plaintiff, and plaintiff suffered no damage therefrom, until on or about the first day of July, 1932, when, and on or about the said last mentioned date, plaintiff's gum, at the place where said tooth had been extracted by the defendant, began to swell, and plaintiff began to suffer from headaches and severe attacks of dizziness, said pains emanating from the point in plaintiff's gum at which said tooth had been extracted; that thereupon plaintiff consulted another dentist, who then proceeded to take an X-ray picture of plaintiff's gum, which picture then and there, and on or about said last mentioned date, for the first time disclosed to plaintiff, and plaintiff first discovered, that a part of the root of said tooth had been so carelessly, negligently and unskillfully left in plaintiff's gum by the defendant."

It was further averred that, as the result of defendant's aforesaid negligence, plaintiff's antrum became involved, necessitating a painful operation by a specialist, and plaintiff was occasioned much suffering and put to large expense in order to have the root of the tooth removed and to be cured of bodily sickness brought about by its presence in his gums.

Bodne v. Austin, 156 Tenn. 353, 2 S.W. (2d) 100, 62 A. L. R. 1410 (the wife's case), settles the proposition that an action for injuries to the person, whether viewed as one in contract or one in tort, is barred by the one-year statute of limitations. Code, § 8595. Bodne v. Austin, 156 Tenn. 366, 2 S.W.(2d) 104, 105 (the husband's case), adjudges that the mere failure of a plaintiff to discover the existence of his cause of action does not prevent the running of the statute. Both cases recognize the rule that fraudulent concealment of the cause of action will arrest the statute.

In the above cases the declarations averred that the dentist there involved extracted the wife's teeth in such a careless, negligent, and unskillful manner as to leave the root of a tooth in her mouth, and that for a long time thereafter the dentist continued to treat the wife's mouth, permitting the root to remain, and carelessly and negligently failed to disclose that fact. The declaration before us is not so strong. There is no averment of continued treatment; indeed, no averment that the plaintiff ever saw the defendant again after the tooth was extracted.

The declaration here does allege that the defendant knew, or by the exercise of reasonable care should have known, that the root of plaintiff's tooth was left in his gum. Such an averment, under Bodne v. Austin (the husband's case), does not make out a fraudulent concealment of a cause of action. It was said in that case: "The averment that the failure to disclose the breach of duty was careless and negligent implies a lack of knowledge on the part of the defendant rather than otherwise. Certainly we would not be justified in assuming fraud in order to prevent the running of the statute of limitations."

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