Bowers v. Santee, No. 16142.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtWANAMAKER
Citation99 Ohio St. 361,124 N.E. 238
PartiesBOWERS v. SANTEE.
Decision Date29 April 1919
Docket NumberNo. 16142.

99 Ohio St. 361
124 N.E. 238

BOWERS
v.
SANTEE.

No. 16142.

Supreme Court of Ohio.

April 29, 1919.


Error to Court of Appeals, Stark County.

Action by Louise Bowers against Leon B. Santee. Demurrer to petition sustained, judgment affirmed by the Court of Appeals, and plaintiff brings error. Reversed and remanded, with instructions to overrule the demurrer and for further proceedings.

Nichols, C. J., dissenting.



Syllabus by the Court

The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon is not an insurer or guaranter, but does agree to exercise the average degree of skill, care, and diligence exercised by members of the same profession in the given situation.

In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. Gillette v. Tucker, 67 Ohio St. 106, 65 N. E. 865,93 Am. St. Rep. 639, approved and followed; McArthur v. Bowers, 72 Ohio St. 656, 76 N. E. 1128, disapproved.


[Ohio St. 362]Hart & Koehler, of Alliance, and McCarty, Armstrong & Rainsberger, of Canton, for plaintiff in error.

David Fording, of Alliance, for defendant in error.

[124 N.E. 239]


WANAMAKER, J.

The sole question in this case is, Does the statute of limitations, raised by the defendant's demurrer, bar plaintiff's right of action? In short, Did more than one year intervene between the date upon which her cause of action ‘accrued’ and the date upon which such action was commenced?

Both courts below found that the statute of limitations (section 11225, General Code) barred the plaintiff's right of action.

Naturally the petition must stand or fall upon its own allegations. The third amended petition, to which the demurrer was interposed, contains among other things the following allegations:

‘That on December 29, 1913, the plaintiff [Louise Bowers] sustained a fracture of both bones of her left leg just above the ankle joint, known as and commonly called the tibia and fibula, and other injuries to her left ankle joint not then and not now fully understood by plaintiff; that on that date the defendant [Leon B. Santee] was advised of plaintiff's injury, and called to her home and employed by her to treat her, and then and there, as a physician and surgeon, was employed and undertook to and did treat plaintiff for her injury, until cured, and at first treatment attempted to reduce the fracture; that the defendant, as such physician and surgeon so employed by the plaintiff, made an examination of her injury,’ etc.

[Ohio St. 363]The petition at great length and with much detail avers that the first attempt to reduce the fracture and treat said injury was unsuccessful, and that, thereafter, in about a week, the defendant again attempted to set or reset the fractured limb. The petition continues:

‘And in so doing he again negligently and without any care failed to place the fractured ends of the bones together, but placed them in such position that had the limb been kept stationary and properly treated thereafter the bones would have united and healed.’

The petition contains the further averment that--

The defendant ‘afterwards advised and instructed the plaintiff to put her weight on her left foot, and thereafter instructed and directed the plaintiff to move about on crutches and use her leg and ankle, and that the defendant pursuant to his employment, which was continuous from the time he first treated plaintiff's injury, continued to so treat, direct, advise, and consel plaintiff concerning her injury until the ___ day of May, 1914, all of which treatment, counsel, advice, and direction so given to the plaintiff by the defendant pursuant to his employment as her physician prevented the ends from the broken bones from uniting, and all of such treatment so continued by the defendant until the ___ day of May, 1914, without the exercise of due care on his part as a physician, particularly the treatment after the plaintiff's injuries were treated the first and second...

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103 practice notes
  • McKenna v. Ortho Pharmaceutical Corp., No. 78-2567
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1980
    ...32 25 Ohio St.2d at 164, 267 N.E.2d at 419, following DeLong v. Cambell, 157 Ohio St. 22, 104 N.E.2d 177 (1952); Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238 (1919); Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 The Ohio Supreme Court's consideration of the application of the "discove......
  • Wyler v. Tripi, No. 69-611
    • United States
    • United States State Supreme Court of Ohio
    • February 24, 1971
    ...latest, when the physician-patient relationship finally terminates. (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, and DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, Page 165 On April 15, 1968, appellant filed a petition in the Cour......
  • Shover v. Cordis Corp., No. 90-332
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1991
    ...The plurality opinion discussed Kerns and Fee but found its way around those cases and their progeny. Later, in Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238, the court established the termination rule in paragraph two of the syllabus where the court said " * * * the statute of lim......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (Sup.Ct.1934); Perrin v. Rodriguez, 153 So. 555 (La.Ct.App.1934); Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238 (Sup.Ct.1919); Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (Sup.Ct.1902); cf. City of Miami v. Brooks, 70 So.2d 306 (Fla.Sup.C......
  • Request a trial to view additional results
105 cases
  • McKenna v. Ortho Pharmaceutical Corp., No. 78-2567
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1980
    ...32 25 Ohio St.2d at 164, 267 N.E.2d at 419, following DeLong v. Cambell, 157 Ohio St. 22, 104 N.E.2d 177 (1952); Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238 (1919); Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 The Ohio Supreme Court's consideration of the application of the "discove......
  • Wyler v. Tripi, No. 69-611
    • United States
    • United States State Supreme Court of Ohio
    • February 24, 1971
    ...latest, when the physician-patient relationship finally terminates. (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, and DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, Page 165 On April 15, 1968, appellant filed a petition in the Cour......
  • Shover v. Cordis Corp., No. 90-332
    • United States
    • United States State Supreme Court of Ohio
    • July 31, 1991
    ...The plurality opinion discussed Kerns and Fee but found its way around those cases and their progeny. Later, in Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238, the court established the termination rule in paragraph two of the syllabus where the court said " * * * the statute of lim......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (Sup.Ct.1934); Perrin v. Rodriguez, 153 So. 555 (La.Ct.App.1934); Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238 (Sup.Ct.1919); Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (Sup.Ct.1902); cf. City of Miami v. Brooks, 70 So.2d 306 (Fla.Sup.C......
  • Request a trial to view additional results

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