Ericson v. Charles

• Decision Date: 08 January 1921
• Docket Number: 22,877
• Citation: 194 P. 652,108 Kan. 205
• Parties: C.A. ERICSON, Appellant, v. HUGH L. CHARLES, Appellee
• Court: Kansas Supreme Court

194 P. 652

108 Kan. 205

C.A. ERICSON, Appellant, v. HUGH L. CHARLES, Appellee

No. 22,877

Supreme Court of Kansas

January 8, 1921

Decided January, 1921

Appeal from Atchison district court; WILLIAM A. JACKSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIAN AND SURGEON--Malpractice--Action Arising on Tort--Limitation of Action. An action for malpractice, in which it is alleged in substance that the defendant, in disregard of his obligations as a surgeon, performed an operation upon the plaintiff in a negligent manner and not in accordance with the custom and practice followed by good reputable and ordinarily prudent surgeons, with a result that she suffered great pain and injury for which she asked damages, is one arising on tort and not on contract, and the statutory limitation of two years applies to such action.

2. SUMMONS--Return of Sheriff--When Not Open to Contradiction. The return of a sheriff upon a summons issued by a justice of the peace or city court as to matters within the personal knowledge of the sheriff is not open to contradiction or to be disproved by extrinsic evidence after the rendition of judgment.

Stanley W. Howe, of Florence, for the appellant.

T. A Moxcey, of Atchison, for the appellee.

OPINION

JOHNSTON, C. J.:

The plaintiff sued the defendant, a surgeon, for violation of his contract in the performance of a surgical operation upon her, and also for malpractice. She further asked that he be enjoined from enforcing a judgment that he had obtained against her for his services. A demurrer was sustained as to the malpractice count, and also to the cause of action for injunction. From these rulings she appeals.

So far as the recovery on the count for malpractice is concerned, it turns upon the application of the statute of limitations. The action was brought more than two years after the cause of action accrued, but less than three years after that time. In the first count of her first cause of action she alleged in substance that the defendant agreed to perform an operation upon her in order to relieve her from an obstruction of the bowels and to give her the necessary treatment following the operation for $ 100, and it was also agreed that he would not remove her vermiform appendix, uterus and ovaries, or perform any other operation on them, but that when she submitted to the operation, in violation of his agreement he removed the appendix, stitched the uterus to the walls of the abdomen in a manner not in accordance with the custom and practice of good and prudent surgeons, causing her to suffer great injury and pain, for which she asked judgment in the sum of $ 5,468.44.

The second count of the same cause of action set out the facts substantially as stated in the first, except that no mention was made of an employment or of an agreement as to the manner or extent of the operation, but it was alleged that the defendant, in disregard of his obligation and duties as a surgeon to perform it in a manner becoming a good, reputable and ordinarily prudent surgeon, had removed her appendix, which was in a good healthy condition, and had stitched the uterus to the wall of the abdomen contrary to the custom and practice followed by good surgeons, and further, that the operation on the obstruction of the bowels, the ailment for which she underwent the operation, was not properly done and only afforded her partial relief. Following this, are the same allegations as to the pain, mental anguish and injury which resulted from the operation as performed, with prayer for judgment, as are stated in the first count.

The court overruled a demurrer to the first count evidently upon the theory that the cause of action alleged was one arising on contract to which the three-year limitation applied. Of this no complaint was made by either party.

A motion to strike out the second count was filed and this was treated as a demurrer, but the court held that it stated a cause of action sounding in tort and was barred by the two-year statute of limitations. The plaintiff insists that when the defendant undertook to perform the operation an implied obligation arose on his part that he would use reasonable skill and care in its performance, and, on her part, that she would pay him the reasonable value of his services. She therefore contends that she was entitled to, and in her pleading did, waive the tort and sue on what she calls the implied contract in the transaction. There is no averment in the second count of an agreement between plaintiff and defendant nor even of employment. It is alleged in effect that he performed the operation but that it was negligently and unskillfully done. In this count plaintiff sets up no more than the violation of duty and the wrong of the defendant. It is true that in certain cases where defendant derives a benefit from a tortuous act, the plaintiff may waive the tort and sue on the implied contract of the defendant to pay for property taken or benefit derived by him. (Fanson v. Linsley, 20 Kan. 235; Smith v. McCarthy, 39 Kan. 308, 18 P. 204; Lipscomb v. Bank, 66 Kan. 243, 71 P. 583.) Here the averments in the count are those stated in an ordinary petition for malpractice and are such as to characterize it as an action ex delicto. In the first count of the same petition which was sustained by the court, the plaintiff had set up an express contract for the violation of which she asked a recovery. The violations there pleaded are the same wrongs set forth in the second count and outside of proof of the contract the same facts must be shown to maintain either. Having pleaded an express contract the plaintiff was hardly in a position to...