Burton v. Tribble

• Decision Date: 16 April 1934
• Docket Number: No. 4-3442.,4-3442.
• Citation: 70 S.W.2d 503
• Parties: BURTON v. TRIBBLE.
• Court: Arkansas Supreme Court

70 S.W.2d 503

BURTON v. TRIBBLE.

No. 4-3442.

Supreme Court of Arkansas.

April 16, 1934.

Appeal from Circuit Court, Garland County; Earl Witt, Judge.

Action by Jessie Murphy Burton against Dr. Albert Tribble. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded, with directions.

Will Steel and Frank S. Quinn, both of Texarkana, for appellant.

Martin, Wootton & Martin, of Hot Springs, for appellee.

JOHNSON, Chief Justice.

Appellant instituted this suit in the Garland circuit court against appellee, alleging: That appellee was, at all the times hereinafter stated, and is now, a duly practicing physician and surgeon; that, in the year 1926, appellant employed appellee to perform, and that he did perform, a major operation upon her abdomen or abdominal cavity; that at the conclusion of said operation appellee carelessly and negligently left remaining in her abdominal cavity a ball of gauze 1½ inches in diameter, and that appellee carelessly and negligently closed the incision into her abdominal cavity without first removing said ball of gauze, and thereby inclosed same within her body; that thereafter appellee continued to treat appellant as physician and surgeon, but carelessly and negligently withheld from appellant any and all information or knowledge in reference to her abdominal cavity containing said foreign substance; that appellant had no information and did not know that said foreign substance was left in her abdominal cavity until 1933, at which time she was compelled to undergo another operation at Texarkana for the removal of said foreign substance. Appellant further alleged continuous pain and suffering from the date of the operation in 1926 until the date of the second operation in 1933 and laid damages in the sum of $35,000.

Appellee interposed, and the trial court sustained, a demurrer to appellant's complaint upon the theory that the alleged cause of action accrued at the time of the operation in 1926 and was barred by limitation three years thereafter. Judgment was entered dismissing appellant's complaint, and this appeal is prosecuted to reverse this judgment.

But one question is presented for determination: Is appellant's alleged cause of action barred by the three-year statute of limitation (Crawford & Moses' Dig. § 6950)?

In Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W.(2d) 19, 20, we announced the applicable rule of limitation in tort actions as follows: That in all tort actions arising in this jurisdiction, not otherwise limited by law, and where the means of information in reference to the cause of the injury were equally accessible to each and both parties, and there was no fraudulent concealment of the cause or extent of the injury, the three-year statute of limitation was applicable and barred the action. The rule thus stated is the inevitable conclusion deducible from the following language which was employed in the Field's Case: "As we understand this record appellant does not contend that the appellee fraudulently concealed any facts with reference to his injuries and he does not contend that appellee had the knowledge of facts or information other than those well known to appellant." Thus it certainly appears that the alleged facts in the instant case do not necessarily fall within the rule of limitation as announced in the Field Case.

By his demurrer, appellee admits that he carelessly and negligently left remaining in appellant's abdominal cavity a ball of gauze 1½ inches in diameter, and continued to treat her thereafter without disclosing to her this unfortunate condition until more than three years had elapsed. It is the well-established doctrine in this jurisdiction that a practicing physician and surgeon...