Carpenter v. Walker

• Citation: 170 Ala. 659,54 So. 60
• Parties: CARPENTER v. WALKER.
• Decision Date: 01 December 1910
• Court: Alabama Supreme Court

54 So. 60

170 Ala. 659

CARPENTER v. WALKER.

Supreme Court of Alabama

December 1, 1910

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by Frank Walker, by next friend, against Allen Carpenter, for malpractice. Judgment for plaintiff, and defendant appeals. Affirmed.

The first count alleged the employment of Carpenter by plaintiff's father, James G. Walker, at the request of the plaintiff, to examine, heal, properly set, and adjust plaintiff's arm for a fracture, wound, or injury, for a reward to be paid by James G. Walker, and the acceptance of defendant, and an entering upon the employment, and then alleged that the defendant conducted himself in an ignorant unskillful, careless, and negligent manner in that behalf whereby plaintiff suffered certain injuries and pains described in the complaint, and alleged that by reason of such careless, unskillful treatment of the defendant the plaintiff became so diseased that it became necessary to have his arm amputated in order to save his life. The other counts stated the same contract and inducement and the same injury in varying phraseology. The facts sufficiently appear in the opinion of the court.

The following charge was given for the plaintiff: (A) "If the jury believe from the evidence that the plaintiff broke his arm, and that the defendant was employed by the plaintiff's father (plaintiff being a minor) to treat and attend the same as a physician and surgeon, and entered upon and undertook such employment, and did set or dress or treat the plaintiff's said arm as a physician or surgeon, and assumed charge of the same, then the plaintiff was entitled to receive from the defendant the care, attention, and skill of an ordinarily skilled physician and surgeon. And if the jury believe that the plaintiff did not receive from the defendant such care, attention, and skill, and that in consequence of not receiving the same, and without fault on plaintiff's part, or on the part of any one else suffered increased pain, suffering, and injury, then the jury are instructed that the defendant is liable, and the jury will render a verdict for the plaintiff, and assess his damages found from all the evidence, not exceeding the amount claimed by the plaintiff in his complaint."

Street & Isbell, for appellant.

John A Lusk, for appellee.

MAYFIELD J.

Appellee, an infant, by his next friend sued appellant, a physician, for malpractice in treating and setting a broken arm for the plaintiff, alleging that in consequence of appellant's negligence in the matter the plaintiff lost his arm, and suffered much pain and anguish. The defendant filed a plea in abatement, setting up that the action was ex contractu, and that defendant was a resident of Madison county, and not of Marshall, in which suit was brought. A demurrer was interposed and sustained to his plea, and properly, because the action is in tort and not in contract. The defendant then demurred to the complaint and to each count thereof, assigning many grounds; but the only ones insisted upon involve the same question raised by the plea--that the complaint or some count thereof is ex contractu, while other counts are ex delicto; and that there was therefore a misjoinder of counts, the trial being had before the new Code became operative.

This point is not well taken. All the counts are ex delicto, hence there was no misjoinder.

All the allegations as to a contract are mere matters of inducement and to show the relation between the parties, and to show that there was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties. The gravamen of the action, in each count, is clearly the breach of this duty owing by the defendant to the plaintiff, and not a mere breach of the contract itself. White v. Levy, 91 Ala. 179, 8 So. 563.

The action against a physician for malpractice need not be based upon a contract, though it may be, and usually is. It is sufficient if based upon his legal obligation. The action for malpractice is essentially in tort, and hence it is immaterial by whom the physician is employed. Cladwell v Stegall, 5 Bing. (N. C.) 733; Pippin v. Shepherd, 11 Price, 400; Nelson v. Harrington, 72 Wis. 591, 40 N.W. 228, 1 L. R. A. 719, 7 Am. St. Rep. 900. ...