Bodne v. Austin

• Decision Date: 06 February 1928
• Citation: 2 S.W.2d 100,156 Tenn. 353
• Parties: BODNE v. AUSTIN.
• Court: Tennessee Supreme Court

2 S.W.2d 100

156 Tenn. 353

BODNE v. AUSTIN.

Supreme Court of Tennessee.

February 6, 1928

Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by Mrs. Mollie Bodne against Dr. J. L. Austin. Judgment for defendant, and plaintiff brings error. Affirmed.

L Turney and M. N. Whitaker, both of Chattanooga, for plaintiff in error.

Strang & Fletcher, of Chattanooga, for defendant in error.

J. M Anderson, McGugin, Evans & Cate and A. W. Stockell, Jr., all of Nashville, amici curiæ.

CHAMBLISS J.

This appeal is from a judgment sustaining a plea of the statute of limitations of one year to a declaration alleging the breach by a dentist of his contract to extract plaintiff's teeth, and make for her a new set, in that he not only failed to extract all of one of her teeth, but broke off one of her jaw teeth, negligently and carelessly, with the result that she suffered pain, loss of time, and was put to a great expense, for which she sought compensatory damages. It is here insisted that the six-year statute (Shannon's Code § 4472) has application, reading, "actions on contracts not otherwise expressly provided for," and not the one-year statute (Shannon's Code, § 4469)-all actions "for injuries to the person," etc.

Elaborate and able briefs have been presented discussing cases of malpractice, into which general classification this suit falls. with special reference to the application of limitation statutes, and citing text-book and decision authorities pro and con. The precise question presented has not been directly passed on in this state, and apparent confusion exists in the decisions of other courts, and more or less conflict, but it will be found that the different conclusions announced have resulted largely from the varying language of the statutes in different judisdictions, and these are not therefore determinative in this state.

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 ex delicto, treated as vital in much of the discussion in the authorities, becomes nondeterminative here. The pertinent inquiry becomes, in each case as presented, whether or not, on the facts alleged, the defendant has inflicted injuries to the person, on account of which recovery is sought. The reasoning and holding in the recent case of Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, reported in 1 A. L. R. 1312, and accompanied by a full note, is much in point. We quote fully from that opinion as follows:

"It was stated in Frechette v. Ravn [145 Wis. 589, 130 N.W. 453], supra, that an action in tort for malpractice was 'plainly one to recover damages for injuries to the person.' Why? Because defendant's conduct resulted in an injury to the person of plaintiff. If it did so because of the tort, which consisted in a breach of duty created by law, it is difficult to see why it does not do so when the same identical conduct produces the same identical result, though the complaint charges the breach of a duty created by contract between the parties instead of the breach of a duty created by law. Damages may flow from the breach of both duties, and likewise an injury to the person may result from the breach of a contract as well as from a tort.

Where, as in malpractice, there is an option to sue in tort or on contract, each cause of action is grounded upon the same identical acts of the defendant, namely, his failure to exercise the proper skill or care, or both. The very same conduct gives plaintiff his option as to remedies. Hence, if defendant's conduct, when sued in tort, gives rise to an action for injuries to the person, the very same conduct must give rise to the same kind of action when sued on contract. The word 'action,' as used in the statute, has reference to the subject-matter or nature thereof, not to its form as a matter of remedial procedure. Whether it be in tort or on contract, it is an action to recover damages for injuries to the person, and comes alike under the terms of the statute, since the phrase therein, 'no action to recover damages for injuries to the person,' refers to bodily injuries, and not to injuries to feelings. Wysocki v. Wisconsin Lakes Ice & Cartage Co., 125 Wis. 638, 104 N.W. 707. Cases cited to us from other jurisdictions, holding that, where statutes prescribe different limitations upon actions sounding in tort and upon those on contract, each form of action will be governed by the limitation prescribed for that form, though both might arise from the same transaction and the one be barred and the other not, are clearly not applicable. For in the instant case the service of notice is not made dependent upon the form of action, but upon its nature or subject-matter. The words, 'action to recover damages for an injury to the person,' mean an action brought on account of or by reason of bodily injuries inflicted upon a human being. Here the complaint charges the infliction of bodily injuries upon plaintiff, and the fact that such infliction is alleged to constitute a breach of contract, instead of a breach of legal duty, makes it none the less an action for injuries to the person. And if the action is in fact one for injury to the person, then the notice must be served, no matter what form the action takes."

In the same volume of A. L. R., on page 1314, the annotator says:

"Where a statute limits the time in which an action for 'injuries to the person' may be brought, the statute is applicable to all actions, the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, in preference to a general statute limiting the time for bringing actions ex contractu"-citing many authorities.

We do not overlook the fact that the Wisconsin statute set out in the foregoing quotation reads, "No action to recover damages for an injury to the person." St. 1898, § 4222, subd. 5. While it is true that the italicized words do not appear expressly in the Tennessee one-year statute, as above stated, this court has reached the conclusion that the Tennessee statute is fairly to be construed as having the same meaning.

Construing the Indiana statutes similar to ours, the federal Court of Appeals, in B. & O. R. R. Co. v. Reed (C. C. A.) 223 F. 689, a suit for personal injuries suffered in a railroad accident, held that the two-year statute, "for injuries" to person or character, applied, and not the six-year statute relating to contracts While earlier cases in Indiana, notably Staley v. Jameson, 46 Ind. 159, 15 Am. Rep. 285, and Burns v. Barenfield, 84 Ind. 43, had held otherwise, the court followed the later cases of Boor v. Lowrey, 103 Ind. 468, 3 N.E. 151, 53 Am. Rep. 519, and Hess v. Lowrey, 122 Ind. 226, 23 N.E. 156, 7 L. R. A. 90, 17 Am. St. Rep. 355, and Feary v. Hamilton, 140 Ind. 45, 39 N.E. 516. The last three cases cited dealt with abatement by death of a party, holding that, whether the action is ex contractu or not, if the recovery sought related primarily to personal injuries, then the shorter limitation applied. In Hess v. Lowrey, supra, authorities are cited for the proposition that "the nature of the damage sued for, and not the nature of its cause, determines whether or not the action survives," and this rule is extended to all actions brought to recover damages for injuries to the person.

So, in Birmingham v. Chesapeake & Ohio Railway Co., 98 Va. 548, 37 S.E. 17, the action was brought in assumpsit to recover damages for personal injuries sustained by the plaintiff through the defendant's negligence while the plaintiff was a passenger on the defendant's railway train. It was contended that the applicable statute of limitations should be determined by the averment that the injury was caused by defendant's breach of its contract to safely transport the plaintiff, and that the three-year statute should be applied, which prescribed a limitation of three years upon all contracts, except those specifically mentioned as included in some other limitation. The one-year statute, which the Supreme Court of Appeals of Virginia held applicable, included every personal action for which no limitation was otherwise prescribed, if it was of such a nature that it would not survive in case of the death of the plaintiff or defendant, as at common law. In holding the one-year statute applicable, the court said:

"This position is not tenable. The limitation is not determined by the form of action, but by its object. If the thing complained of is an injury to the person, the limitation in assumpsit is the same as if the action were in form ex delicto. 'Whenever the injury is merely personal, whether resulting from breach of contract or from tort, the maxim, "actio personalis moritur cum persona," prevails.' Grubb's Adm'r v. Sult, 32 Grat. 203 .

The object of the suit at bar being to recover damages for personal injuries alleged to have been sustained by the plaintiff,

the limitation in tort actions is applicable."

The two cases perhaps most strongly relied on by counsel for plaintiff in error are Sellers v. Noah,...