Crossett Health Center v. Croswell, No. 4-9989

CourtSupreme Court of Arkansas
Writing for the CourtGRIFFIN SMITH; Rose; GEORGE ROSE SMITH; HOLT
Citation256 S.W.2d 548,221 Ark. 874
PartiesCROSSETT HEALTH CENTER v. CROSWELL.
Docket NumberNo. 4-9989
Decision Date30 March 1953

Page 548

256 S.W.2d 548
221 Ark. 874
CROSSETT HEALTH CENTER

v.
CROSWELL.
No. 4-9989.
Supreme Court of Arkansas.
March 30, 1953.
Rehearing Denied April 27, 1953.

[221 Ark. 875] Leffel Gentry, Little Rock, for appellant.

A. James Linder, Hamburg, Switzer & Switzer, Crossett, for appellee.

GRIFFIN SMITH, Chief Justice.

Appellee as a patient at Crossett Health Center was operated upon July 6, 1948. Intestinal adhesions and other ailments were encountered. Steel wire was used in closing the operational wound. Discomfort resulted to such an extent that an effort was made to remove the wire. Pain and general debility continued. The Health Center treatment was unsatisfactory and in consequence of what the patient said was a refusal of the Center to further cooperate she went to Louisiana. At Bastrop Dr. J. N. Jones operated. He removed a small piece of the suture wire from an intestine, but testified that it had not fully penetrated, hence serious infection such as peritonitis had not developed. It was Dr. Jones' belief that the persistent pain experienced by the patient could have been caused by the wire, and very probably was.

Mrs. Croswell sued for $130,885.85--thirty thousand for pain and suffering, $50,000 because as a result of the mistreatment she became a drug addict, $50,000 to [221 Ark. 876] compensate humiliation because of arrest by federal narcotic agents, conviction, and a

Page 549

three-year suspended sentence, and $885.85 for medical and hospital expenses. From a judgment for $1,885.85 the Health Center has appealed.

The operation for removal of wire occurred August 8, 1948. The original complaint was filed April 30, 1951, and in order to avoid application of the two-year statute of limitations raised by demurrer, an amendment was filed July 7, 1951, alleging that the faulty work had been concealed.

Dr. W. R. Cothern, who assisted the director-surgeon with the operation, was named as a co-defendant, but the jury found in his favor. It is insisted on appeal (1) that the court erred in not sustaining the defendant's demurrer, which was renewed after the amendment was filed, and (2) the Health Center is a benevolent and charitable association and is not answerable for the torts of its agents.

First--The Statute of Limitation.--Act 58 of 1945, Ark.Stats. § 37-205, reads: 'All actions of contract or tort for mal-practice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanataria, shall be commenced within two (2) years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.'

We have said in effect that fraudulent concealment will toll the statute, although the case in which the language was used held that the action was barred. See Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520, 120 A.L.R. 754, decided under Act 135 of 1935, which allowed three years.

Admittedly the operation in the case at bar was performed more than two years before suit, hence the demurrer should have been sustained unless conduct amounting to fraudulent concealment prevented appellee, as a reasonable person from knowing that some of her [221 Ark. 877] continuing ills were traceable to appellant's failure to remove the wire.

The Act of 1935 fixed the time of accrual of the cause of action as the 'date of the wrongful act complained of and no other time.' Regardless of this language, construction given the Act in the Steele-Gann case recognizes an exception where fraudulent concealment has prevented the injured person from seeking redress. The identical sentence found in Act 135 of 1935 is in the enactment of 1945.

Dr. Cothern testified that the last time he saw Mrs. Croswell was March 21, 1949. At that time the following indorsement was made: 'Pain in the abdomen; temperature 99; abdomen distended, but is soft with no definite areas of tenderness'. This date substantially coincides with statements by Mrs. Croswell that she was refused readmittance to the Health Center; and, inferentially, this refusal continued until other physicians were consulted.

A comparatively modern case (1931) dealing with fraudulent concealment is Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633. There, as here, a demurrer was overruled and the defendant appealed. The gist of the opinion is that when, through fraudulent concealment of the tort-feasor, a party against whom a cause of action exists prevents the person alleging injury from obtaining knowledge thereof, the statute of limitation will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence. 'This', says the opinion of Chief Justice Wilson, 'is the rule apart from any statute.'

To the same effect is Johnson v. Nolan, 105 Cal.App. 293, 288 P. 78, and other cases cited in 74 A.L.R. 1317. See, also, Hotelling v. Walther, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 209, Oklahoma Tax Comm., 193 Kol. 271, 143 P.2d 143, 151 A.L.R. 1035.

Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503, 505, is to the point. There an abdominal operation was performed and the surgeon negligently left a ball of gauze within the cavity. In holding that an action brought [221 Ark. 878] seven years later was not barred as a matter of law, it was said:

'* * * appellee's acts of leaving the ball of gauze in appellant's abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation

Page 550

until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.'

The opinion also called attention to the fact that by its demurrer the appellee had admitted negligence. In the case at bar an answer was filed after the demurrer to the amended complaint had been overruled, hence the cause was tried on its merits rather than upon admissions of the demurrer.

Our conclusion is that there was sufficient evidence of appellant's failure to exercise appropriate diligence to ascertain why the patient's suffering continued, therefore the issues were properly presented to the jury. That the wire could have been found is attested by the fact that Dr. Jones discovered it without unusual difficulty, and it is fairly inferable that its existence would have been disclosed by X-ray.

Second--Claim of Immunity as an Institution of Charity.--We have held that agencies, trusts, etc., created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the agency or trust. Woman's Christian National Library Association v. Fordyce, 79 Ark. 532, 86 S.W. 417, and Fordyce v. Woman's Christian National Library Association, 79 Ark. 550, 96 S.W. 155, 7 L.R.A.,N.S., 485. The last case was distinguished in...

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39 practice notes
  • Wyler v. Tripi, No. 69-611
    • United States
    • United States State Supreme Court of Ohio
    • 24 Febrero 1971
    ...caused condition, if the physician has fraudulently concealed his negligent conduct. E. g., Crossett Health Center v. Croswell (1953), 221 Ark. 874, 256 S.W.2d 548; Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891; Lakeman v. La France (1959), 102 N.H. 300, 156 A.2d 123. Finally, a few j......
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals
    • 17 Abril 1969
    ...(Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320; Saffold v. Scarborough, 91 Ga.App. 628, 86 S.E.2d 649; Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548; Adams v. Ison, 249 S.W.2d 791 (Ky); Hinkle v. Hargens, 76 S.D. 520, 81 N.W.2d 888; Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • 30 Junio 1961
    ...S.W.2d 760 (Sup.Ct.1943) and Act 58 of 1945, Ark.Stats. §§ 37--205 cited in Crossett Health Center v. Croswell, 221 Page 439 Ark. 874, 256 S.W.2d 548 (Sup.Ct.1953). In most of the states, as in New Jersey, the legislatures have not at all expressed themselves on the matter, preferring to le......
  • Muller v. Nebraska Methodist Hospital, No. 33694
    • United States
    • Supreme Court of Nebraska
    • 29 Abril 1955
    ...a similar exception ranging from complete immunity to varying degrees thereof. See, Crossett [160 Neb. 284] Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548; Jurjevich v. Hotel Dieu, La.App., 11 So.2d 632; Howard v. South Baltimore General Hospital, 191 Md. 617, 62 A.2d 574; Mastrang......
  • Request a trial to view additional results
39 cases
  • Wyler v. Tripi, No. 69-611
    • United States
    • United States State Supreme Court of Ohio
    • 24 Febrero 1971
    ...caused condition, if the physician has fraudulently concealed his negligent conduct. E. g., Crossett Health Center v. Croswell (1953), 221 Ark. 874, 256 S.W.2d 548; Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891; Lakeman v. La France (1959), 102 N.H. 300, 156 A.2d 123. Finally, a few j......
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals
    • 17 Abril 1969
    ...(Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320; Saffold v. Scarborough, 91 Ga.App. 628, 86 S.E.2d 649; Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548; Adams v. Ison, 249 S.W.2d 791 (Ky); Hinkle v. Hargens, 76 S.D. 520, 81 N.W.2d 888; Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • 30 Junio 1961
    ...S.W.2d 760 (Sup.Ct.1943) and Act 58 of 1945, Ark.Stats. §§ 37--205 cited in Crossett Health Center v. Croswell, 221 Page 439 Ark. 874, 256 S.W.2d 548 (Sup.Ct.1953). In most of the states, as in New Jersey, the legislatures have not at all expressed themselves on the matter, preferring to le......
  • Muller v. Nebraska Methodist Hospital, No. 33694
    • United States
    • Supreme Court of Nebraska
    • 29 Abril 1955
    ...a similar exception ranging from complete immunity to varying degrees thereof. See, Crossett [160 Neb. 284] Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548; Jurjevich v. Hotel Dieu, La.App., 11 So.2d 632; Howard v. South Baltimore General Hospital, 191 Md. 617, 62 A.2d 574; Mastrang......
  • Request a trial to view additional results

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