Byers v. Bacon

• Decision Date: 03 July 1915
• Docket Number: 279
• Citation: 250 Pa. 564,95 A. 711
• Parties: Byers, Appellant, v. Bacon
• Court: Pennsylvania Supreme Court

95 A. 711

250 Pa. 564

Byers, Appellant, v. Bacon

No. 279

Supreme Court of Pennsylvania

July 3, 1915

Argued May 18, 1915

Appeal, No. 279, Jan. T., 1914, by plaintiff, from judgment of C.P. York Co., April T., 1913, No. 57, on directed verdict for defendant in the case of Edgar J. Byers v. William F Bacon.Reversed.

Trespass for personal injuries.Before ROSS, J.

The opinion of the Supreme Court states the case.

The court directed a verdict for defendant, upon which judgment was entered.Plaintiff appealed.

Errors assigned were rulings on evidence and in giving binding instructions for defendant.

The assignments of error are sustained, and the judgment is reversed with a procedendo.

John E Malone, with him Charles E. Zerfing, for appellant.-- The statute of limitations ran from the time of the discovery of the tube by appellant's physician: Smith v. Blachley,188 Pa. 550;Lewey v. H.C. Frick Coal Co.,166 Pa. 536;Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co.,167 Pa. 136;Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Co., 241 Pa. 469.

Henry C. Niles, with him John N. Logan, James J. Logan and Frank R. Stocker, for appellee.-- The action is barred by the Act of June 24, 1895, P.L. 236;Henkel v. Beitsch,22 Pa. D.R. 895;Reinhard v. Fuhr, 4 LehighCo. L.J. 198;Rodebaugh v. Philadelphia Traction Co.,190 Pa. 358;Peterson v. Delaware River Ferry Co.,190 Pa. 364;Bowden v. Philadelphia, Wilmington & Balto. R.R. Co.,196 Pa. 562;Owen v. Western Savings Fund, 97 Pa. 47.

Before BROWN, P.J., MESTREZAT, POTTER, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE POTTER:

The defendant in this case, a physician and surgeon, was charged by the plaintiff with negligence in failing to remove at the proper time, a rubber tube, which during the progress of a surgical operation performed on the plaintiff by defendant, had been inserted in the wound for drainage purposes.In the statement of claim, the plaintiff alleged that the operation was performed by defendant at the York hospital, where he was head of the staff of physicians.That on March 21, 1910, plaintiff was discharged from the hospital as a patient by defendant, and was told to report to his family physician.It was alleged that the tube was allowed by defendant to remain in the wound, but as it was not visible from the surface, plaintiff did not know of its presence.He continued under the care of his family physician, and it was not until June 8, 1911, that the tube was discovered in the wound and removed.At the trial plaintiff offered to show these and other facts necessary to sustain his charge of negligence, but as it appeared that plaintiff was discharged from the hospital on March 21, 1910, and this action was not brought until February 18, 1913, the trial judge was of the opinion that the action was barred under the provisions of the Act of June 24, 1895, P.L. 236, which requires suit for damages, not resulting in death, to be brought within two years from the time when the injury was done.He, therefore, refused to admit testimony offered by plaintiff as set forth in the assignments of error, and gave binding instructions in favor of the defendant.

It may be that the court below was right in holding that under any aspect in which the case may be placed by additional testimony, the bar of the statute of limitations is fatal to the claim of plaintiff.But we do not see that this is necessarily so.The negligence charged was not in the insertion of the tube, but it was in the failure to remove it at the proper time,...