Cox v. Cartwright

• Decision Date: 30 December 1953
• Citation: 121 N.E.2d 673,96 Ohio App. 245
• Parties: , 54 O.O. 281 COX, Appellee, v. CARTWRIGHT, Appellant.
• Court: Ohio Court of Appeals

Page 245

96 Ohio App. 245

121 N.E.2d 673, 54 O.O. 281

COX, Appellee, v. CARTWRIGHT, Appellant.

Court of Appeals of Ohio, Summit County.

Dec. 30, 1953.

Syllabus by the Court.

1. An action against a dentist, in which damages are sought for pain and suffering, loss of work, and financial loss through the payment for services to a second dentist, all based upon claimed improper fitting of false teeth, states a case in malpractice, and is governed by the one-year statute of limitations, Section 11-225, General Code, now Section 2305.11, Revised Code.

2. The special provision in Section 11225, General Code (now Section 2305.11, Revised Code), which limits the time within which actions in malpractice may be commenced, is controlling over the general statutory provision in Section 11222, General Code (now Section 2305.07, Revised Code), which limits the time within which actions upon a contract, express or implied, may be commenced.

Myers, Myers & Myers, Akron, for appellant.

Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellee.

DOYLE, Presiding Judge.

This is an appeal from a judgment entered in the Municipal Court of Akron, which sustained a demurrer to a cross-petition filed therein (and subsequent dismissal of the pleading, through a refusal to plead further) on the ground that the statute of limitations barred the action.

The cross-petitioner alleged that she consulted her adversary, a dentist, 'about extracting two front teeth and making her a partial plate for the extracted front teeth * * *; that plaintiff agreed to do the work and supply the partial plate * * *.' The pleading further stated in substance that, after the teeth were extracted the plate, which was furnished and 'inserted' into her mouth, did not fit; that 'she was unable to eat her food with the partial plate, and that when she could keep the plate in her mouth, the pain from the wedging of the plate between her teeth was unbearable; that she lost four days of work, because she was unable to speak clearly; * * * that the partial plate made by the plaintiff for the defendant was inferior, was not fit for the specific purpose for which it was made; was of no value whatever and was worthless; that as a result of plaintiff's failure to comply with his agreement, defendant was forced to have another dentist make a partial plate that she could wear, and that defendant did return the partial plate plaintiff had made, after he refused to do anything further; all to her damage in the sum of * * * $534.40.'

The cross-petitioning patient of the dentist, in her appeal, presents the following two questions:

'1. Is the liability of a dentist based only on malpractice?

'2. Is a dentist liable on a warranty of suitability and fitness for the bridges and teeth he sells?'

'The quaere is, of course, aimed at the application of two statutes of limitations. The first is the one governing actions for malpractice. It was:

'An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, * * * shall be brought within one year after the cause thereof accrued * * *.' (Italics ours.) Section 11225, General Code (now Section 2305.11, Revised Code).

The second is the one governing contracts not in writing. It was:

'An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued.' Section 11222, General Code (now Section 2305.07, Revised Code).

If the malpractice statute applied to the pleading, the action of the trial court must be affirmed; and, on the contrary, if the contract statute applied, the judgment must be reversed.

Of interest is the claim of the appellant that 'the obligation of a dentist is two-fold: that he should use ordinary care; and, in cases where he contracts to do a specific thing, he should be held liable for failure to fulfill his contract. * * * There is no claim in the present case of lack of ordinary care in extracting teeth or treatment afterwards. The claim is that the * * * denture or plate was made to fit some other mouth and was not suitable or fit for the purpose for which it was purchased.'

Section 1329, General Code, Section 4715.01, Revised Code, stated in terms who should be regarded as engaged in the practice of dentistry. It was therein stated that one who, for a fee, performs dental operations, or one who 'takes impressions of the human teeth or jaws, or who shall construct, supply, reproduce, or repair any prosthetic denture, bridge, artificial restoration, appliance, or other structure to be used or worn as a substitute for natural teeth,' shall be regarded as practicing dentistry.

So, with the case at hand, when the dentist contracted with his patient to extract her teeth and to provide her with a denture, and then undertook to perform the necessary acts to fulfill his contract, he was at all times engaged in the practice of dentistry; and if, when performing such services in fulfillment of his engagement, he failed to exercise the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in the light of the present state of the science of dentistry, he was guilty of the tort of malpractice. Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am.St.Rep. 639; Hier v. Stites, 91 Ohio St. 127, 110 N.E. 252; Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A.L.R. 128.

See also Craig v. Chambers, 17 Ohio St. 253.

The cases above cited all treat of the conduct of physicians and surgeons. It must be observed, however, that the practice of dentistry in this state is regulated by statute, and high standards of qualification govern the licensing of the practitioner. The licensed dentist...