Bland v. Smith

• Decision Date: 11 March 1955
• Citation: 1 McCanless 683,197 Tenn. 683,277 S.W.2d 377
• Parties: , 197 Tenn. 683, 49 A.L.R.2d 1212 R. Earl BLAND v. Mrs. M. V. SMITH.
• Court: Tennessee Supreme Court

Page 377

277 S.W.2d 377

1 McCanless 683, 197 Tenn. 683, 49

A.L.R.2d 1212

R. Earl BLAND v. Mrs. M. V. SMITH.

Supreme Court of Tennessee.

March 11, 1955.

A. A. Aspero and W. C. Rodgers, Memphis, for plaintiff in error.

Hanover, Hanover & Hanover, Memphis, for defendant in error.

PREWITT, Justice.

The Circuit Judge sustained the demurrer to the declaration dismissing the suit and this appeal resulted.

There are two questions presented, first whether the one year Statute of Limitations applies and two, if it does whether the present suit was filed within the one year period.

This is a suit brought by Doctor Bland, a colored physician in the City of Memphis, against Mrs. M. V. Smith, a practicing attorney of the Memphis Bar.

The defendant, Mrs. Smith, contends that this suit is in reality one of malpractice. The declaration damands damages in the sum of $50,000.

The plaintiff below, Bland, alleged that he employed Mrs. Smith on March 15, 1950, to represent him and defend the suit for divorce which had been filed against him; that he paid her $1,000, as an attorney fee to represent him in this litigation.

The plaintiff's declaration contains many allegations with reference to negligence, failures, and refusals on the part of Mrs. Smith to perform her services; that she neglected to conduct the trial in a proper manner, and that she neglected to place witnesses on the stand in his behalf, and various other acts of misconduct in the trial of the divorce suit.

The plaintiff's declaration and amendment thereto contains only this statement with reference to his damages. This is as follows: 'to his great damage, injury and detriment, not only the loss of his properties but to his great annoyance, aggravation, embarrassment, humiliation and injury to his physical well-being, particularly his health, on the account of which he suffered no end of pain and mental anguish.'

The statute of limitations in suits 'for personal injuries' provides that the action must be brought 'within one year after cause of action accrued.' Section 8595, Williams Tennessee Code Anno.

To determine whether or not a suit is for personal injuries or contract a Court must look to the plaintiff's declaration to determine the real purpose of the law suit. Citing Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100, 62 A.L.R. 1410; 34 Am.Jur., Limitations of Actions, Sec. 103, Tort Arising Out of Contract; State v. Head, 194 Tenn. 576, 253 S.W.2d 756; Ehlen v. Burrows, 51 Cal.App.2d 141, 124 P.2d 82.

In determining the real purpose or the gravamen of the action the Court must look to the basis for which damages are sought. 15 Am.Jur., Damages, Section 273.

It is the contention of the plaintiff that this is an action for breach of contract and that the six year statute of limitations, Code, § 8600, applies. This six-year statute of limitations is only applied in cases where the whole basis of recovery is sought on contract and no element of personal injuries is involved. Bruce v. Baxter, 75 Tenn. 477; Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100.

The Court must look to the plaintiff's declaration to determine whether or not he is suing on the implied contract as exists between attorney and client, or whether or not he is suing for injuries to the person. The question of whether or not the action is one ex contractu or ex delicto is not determinative of the question. The question is whether or not the plaintiff is suing for injuries to the person.

A careful reading of the declaration and the amendment thereto will show that the plaintiff has sued for both compensatory and punitive damages.

It is a general rule in Tennessee that punitive damages are only allowable in cases involving torts where the action involves fraud, malice, oppression, or gross negligence. These damages are not generally allowed in cases founded on a breach of contract.

The principal allegation in the declaration as to damages is the statement regarding the defendant's conduct that in all of the matters complained of the result was 'to his great damage, injury, and detriment' wherein he suffered no end of pain and mental anguish as a result of the misconduct of the defendant.

In Bodne v. Austin, supra, it appears that there was a suit for breach of a dentist's contract to extract plaintiff's teeth and make her a new set. It was alleged that he negligently failed to extract all of her teeth and one broke in her jaw with the result that 'she suffered pain, loss of time, and was put to a great expense.' The defendant interposed the plea of the one-year Statute of Limitations and the plaintiff relied upon the six-year Statute of Limitations. In this case the Court said:

'(1) It is assumed in much of the discussion that the decision turns upon whether the action is in contract or ex delicto, grounded on the wrong. However, this court is of opinion that this is not determinative; that, conceding that in given malpractice cases there may be two independent causes of action, (1) breach of a contract, and (2) negligence constituting a tort, and conceding further, as quite generally held, that the right of election ordinarily exists as between these two causes of action, nevertheless, the effect of the Tennessee statutes is to limit the bringing of a suit to one year, whenever the action is one to recover damages for injuries to the person. In this view and construction of our statutes the question as to whether the ground or cause of the action is ex contractu or...