Barnhoff v. Aldridge

• Decision Date: 21 May 1931
• Docket Number: No. 29685.,29685.
• Citation: 38 S.W.2d 1029
• Parties: ANNA BARNHOFF, Appellant, v. M.R. ALDRIDGE.
• Court: Missouri Supreme Court

38 S.W.2d 1029

ANNA BARNHOFF, Appellant, v. M.R. ALDRIDGE.

No. 29685.

Supreme Court of Missouri. Division One.

May 21, 1931.

Appeal from Cole Circuit Court. — Hon. H.J. Westhues, Judge.

AFFIRMED.

J.W. Walsh and T.S. Mosby for appellant.

(1) An express promise by the physician being alleged and counted upon, the action is in contract, and not in tort. 30 Cyc. 1582; Burns v. Bauenfield, 84 Ind. 43. (2) The statute of limitations invoked in this case has no application to actions ex contractu. Laws 1921, p. 198; 30 Cyc. 1582; 25 Cyc. 1032, 1047.

Irwin & Bushman and Woodward & Evans for respondent.

(1) A demurrer admits only allegations of fact well pleaded; it does not admit irrelevant or immaterial allegations, surplusage, nor conclusions of law. Lackawanna Coal & Iron Co. v. Long, 231 Mo. 605; Stonemets v. Head, 248 Mo. 243; Stephens v. Liverymen & Undertakers Assn., 295 Mo. 596, 246 S.W. 40; Normandy District v. Harral, 315 Mo. 614, 286 S.W. 86. (2) The character of a petition, as to whether it is in form ex delicto or ex contractu, is to be judged by its basic allegations, and not by the matter stated as mere inducement. Wasson v. Dow, 251 S.W. 69; Quigley v. King, 182 Mo. App. 196, 168 S.W. 285; Hunter v. Sloan, 195 Mo. App. 69, 190 S.W. 57. (3) Divorced from its irrelevant allegations and pure conclusions of law, the petition in this case states a cause of action ex delicto for malpractice of surgery, either negligent or wilful; with a contract of employment set up as mere inducement. Hailes v. Raines, 162 Mo. App. 62; Canaday v. United Rys. Co., 134 Mo. App. 282; Marty v. Somers, 35 Cal. App. 182, 169 Pac. 411; Kuhn v. Brownfield, 34 W. Va. 252, 11 L.R.A. 700; Horowitz v. Bogart, 217 N.Y. Supp. 881, 218 App. Div. 216; Chalmers v. Ry. Co., 8 Fed. (2d) 480; Hurlburt v. Gillett, 161 N.Y. Supp. 994. (4) But whether the form of the petition be construed as ex contractu or ex delicto, the nature or cause of the action alleged is essentially for damages on account of the alleged malpractice of the defendant, and, therefore, the special two-year statute of limitations, governing suits for malpractice, error or mistake on the part of a physician and surgeon, applies. Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1311; Basler v. Railway, 166 Cal. 33, 134 Pac. 993; Harding v. Liberty Hospital (Cal.), 171 Pac. 98; Chalmers v. Ry. Co., 8 Fed. (2d) 480; Handtoffski v. Traction Co., 274 Ill. 282; Griffin v. Woodhead, 30 R.I. 204; Birmingham v. Ry. Co., 98 Va. 548; Bonde v. Austin, 156 Tenn. 353, 2 S.W. (2d) 100; Sutherland v. Fidelity & Casualty Co., 103 Wash. 583, 175 Pac. 187; B. & O. v. Reed, 223 Fed. 689, 1 A.L.R. 1316; Boar v. Lowrey, 103 Ind. 468; Feary v. Hamilton, 140 Ind. 45; 21 R.C.L. 401, sec. 44. (5) The term "malpractice" as used in the statute does not necessarily imply a wilful or negligent tort, but may include any breach of the professional relationship between physician and patient resulting in injury to the latter. Gregory v. McInnis, 140 S.C. 52; Ex parte Amos (Fla.), 112 S.E. 293; Napier v. Greenzweig, 256 Fed. 196; Sutherland v. Fidelity & Casualty Co., 103 Wash. 583, 175 Pac. 187.

FERGUSON, C.

This is an action for damages for injuries alleged to have been sustained by plaintiff and to have resulted from a surgical operation performed upon plaintiff by defendant, a physician and surgeon.

The petition is in eight paragraphs and we set out briefly the substance of each paragraph, quoting the more pertinent parts, as follows:

1. That, the defendant is a practicing physician and surgeon residing in Jefferson City, Missouri.

2. That, in March, 1922, plaintiff became ill; suffered from pain in the right side of her abdomen; her family physician "diagnosed her ailment as gall-bladder trouble;" she consulted a number of other physicians and surgeons who made the same diagnosis.

3. That, she was brought to a hospital in Jefferson City; her family physician "decided removal of the gall-bladder was an urgent necessity." The defendant was called on July 9, 1923, "to perform the said surgical operation and that the defendant did on said date for hire then and there orally contract and agree with plaintiff to perform the said operation."

4. That, defendant made an examination of plaintiff; stated that plaintiff was suffering from a diseased gall-bladder and caused x-ray photographs to be taken which confirmed the diagnosis previously made.

5. That, plaintiff was required to remain in said hospital and that defendant had x-ray photographs made of plaintiff's teeth and at direction of defendant all of plaintiff's teeth were extracted.

6. That, on August 22, 1923, the defendant operated upon plaintiff but "instead of performing the said operation, as defendant had contracted and agreed to do, the defendant violated his said contract with plaintiff and contrary to his promise and agreement theretofore made and entered into with this plaintiff, made various deep and dangerous incisions in and upon plaintiff's back, under pretense of lifting one of the kidneys of plaintiff, thereby seriously wounding and injuring this plaintiff, but wholly failing and refusing to remove plaintiff's diseased gall-bladder as aforesaid."

7. That, "as a direct and proximate result of his breach of duty to the plaintiff as aforesaid under said agreement the plaintiff became physically disabled and suffered great pain of body and anguish of mind, and has been a helpless and hopeless invalid ever since; that for a long time thereafter she was not able to stand or walk without great pain, and was and is as a result of said injuries wholly unable to perform any kind of labor or to earn her own living."

8. "That because of defendant's breach of his contract with her as aforesaid, the plaintiff has been obliged to undergo two additional surgical operations ... and as a result of defendant's said breach of contract and his failure to perform his duty to plaintiff under the agreement as aforesaid, this plaintiff is now permanently crippled and will be an invalid for life... . Wherefore plaintiff says that she has suffered injury and damage in the sum of fifty thousand dollars, for which sum she prays judgment and costs."

Defendant interposed a demurrer on the ground "that it appears upon the face of said petition that the plaintiff's cause of action, if any she has, accrued more than two years before the commencement of this suit and has become completely barred by the Statute of Limitations." The court sustained the demurrer and entered judgment for the defendant, whereupon the plaintiff appealed. By his demurrer the defendant invoked Section 864, Revised Statutes 1929, Laws 1921, p. 197, which reads:

"All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of."

The action was filed to the June term, 1927, of the Circuit Court of Cole County, and more than two years after the alleged cause of action arose.

Plaintiff says that the action is not an action for damages for "malpractice, error or mistake" on the part of the defendant surgeon but is an action ex contractu for damages for the breach of an express contract and that the Statute of Limitations (Section 864, supra) invoked has no application to actions ex contractu. In an examination of plaintiff's theory we review the petition for the purpose of determining whether the cause of action set out therein is, as claimed by defendant, in effect one for damages for malpractice. The second and third paragraphs of the petition contain matters of inducement and allege that defendant was employed to perform a surgical operation upon plaintiff for the removal of the gall-bladder which it is alleged he orally agreed and contracted to do. The fourth and fifth paragraphs of the petition, pertaining to the taking of x-ray photographs, the extraction of plaintiff's teeth and preoperative hospitalization, have no direct bearing on the object and purpose of the action. The basic allegations of plaintiff's cause of action are found in paragraphs 6 and 7 and demonstrate that the purpose of the action is the recovery of damages against defendant, in an unliquidated amount, for personal and bodily injuries which it is alleged plaintiff sustained as the result of an alleged wrongful act on the part of defendant and that such wrongful act was a breach of the contractual and legal duty which the defendant surgeon owed to plaintiff in performing the operation. We...