Finch v. Bursheim

• Decision Date: 20 June 1913
• Docket Number: 17,995 - (99)
• Citation: 142 N.W. 143,122 Minn. 152
• Parties: FANNY FINCH v. P. J. BURSHEIM
• Court: Minnesota Supreme Court

142 N.W. 143

122 Minn. 152

FANNY FINCH v. P. J. BURSHEIM

Nos. 17,995 - (99)

Supreme Court of Minnesota

June 20, 1913

Action in the district court for Lincoln county to recover $5,125 for defendant's negligence as a physician and surgeon in his care of plaintiff. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. From an order, Olsen, J. overruling the demurrer, defendant appealed. Affirmed.

SYLLABUS

Complaint.

1. Complaint held to state a cause of action.

Action against physician for malpractice.

2. An action against a physician and surgeon to recover damages due to negligent and unskilful treatment of plaintiff is based on a breach of his contract to treat the plaintiff with ordinary professional skill and care and is an action on contract.

Warren Miller, for appellant.

M. E Mathews, for respondent.

OPINION

BUNN, J.

Appeal from an order overruling a demurrer to the complaint. Two questions are here for decision: (1) Does the complaint state a cause of action; (2) does it show that the right of action is barred by the statutes of limitation? The complaint alleges that on February 28, 1909, plaintiff employed defendant, a duly licensed and practicing physician and surgeon, "to set, adjust, care for and heal" a dislocated hip joint from which plaintiff was then suffering; that defendant "undertook * * * to set, adjust, care for and heal said joint;" that defendant negligently and unskilfully conducted himself in the treatment of said injury, and failed to adjust, set or care for said joint, whereby the ligaments and muscles surrounding said joint became inflamed, weakened and diseased, so as to become very painful to plaintiff, and make him a cripple for life. General damages in the sum of $5,000 are alleged, and special damages pleaded.

1. The allegation that defendant "negligently and unskilfully" treated the injury after undertaking the case is clearly sufficient as against a demurrer. Perhaps a motion to make the complaint more definite and certain might have been sustained, but it is hardly open to serious question that the complaint states a cause of action, and we so hold.

2. Defendant contends that the right of action is barred by R.L 1905, § 4078, subd. 1, which provides that "The following actions shall be commenced within two years: For libel, slander, assault, battery, false imprisonment, or other...