Force v. Pusitz, 41428

• Decision Date: 13 June 1959
• Docket Number: No. 41428,41428
• Citation: 340 P.2d 363,185 Kan. 90
• Parties: Harry E. FORCE, Appellant, v. M. E. PUSITZ, Appellee.
• Court: Kansas Supreme Court

Page 363

340 P.2d 363

185 Kan. 90

Harry E. FORCE, Appellant, v. M. E. PUSITZ, Appellee.

No. 41428.

Supreme Court of Kansas.

June 13, 1959.

Syllabus by the Court

In a tort action brought by a patient against a doctor by reason of alleged negligent treatment, as is more fully set out in the opinion, it is held, the trial court's order sustaining the defendant's motion to strike certain allegations of the petition on the ground that the same were barred by the statute of limitations was a proper exercise of the trial court's sound judicial discretion, under G.S.1949, 60-741, but the trial court erred in sustaining a like motion to the amended petition. The sustaining of the latter motion was a final order and was appealable since it affected plaintiff's substantial rights in the action (G.S.1949, 60-3303) by preventing him from alleging the elements essential to support his claim, under G.S.1949, 60-749, that he had been and continued to be a patient of the defendant doctor.

E. H. Hatcher, Topeka, argued the cause and was on the briefs for appellant.

O. B. Eidson, Topeka, argued the cause, and T. M. Lillard, P. H. Lewis, James W. Porter, and E. Gene McKinney, Topeka, were with him on the briefs for appellee.

ROBB, Justice.

This is an appeal from orders of the court below striking certain allegations from plaintiff's petition and amended petition in a tort action based on alleged acts of negligence of defendant doctor in the treatment of plaintiff as a patient.

Is there a final order which justifies appellate review thereof under the appropriate statutes? G.S.1949, 60-3302, First and Third; G.S.1949, 60-3303. Before this preliminary question is determined we must examine the record to ascertain what the sequence of events was.

Plaintiff's first claim is that the trial court, upon defendant's motion, erred in striking certain portions of the original petition by reason of their being barred by the statute of limitations. G.S.1949, 60-306, Third. Due to the length of the portions of the petition that were stricken, we shall not repeat them in full but it is sufficient to say that we think the trial court did not abuse its sound discretion in sustaining the motion to strike. Such motion was addressed to the sound discretion of the court and we do not deem it necessary to disturb that ruling. Supporting authorities for this position are G.S.1949, 60-741; Manwaring v. Reynolds, 108 Kan. 777, 196 P. 1086; Vitt v. McDowell Motors, Inc., 180 Kan. 800, 308 P.2d 115; Byerley v. Braucher, 180 Kan. 816, 308 P.2d 144; 4 Hatcher's Kansas Digest, rev. ed., Pleading, § 4; 8 West's Kansas Digest, Pleading, k11.

Plaintiff filed his amended petition pursuant to permission granted in the order pertaining to the petition. Since we are concerned only with paragraphs II and III, those are all we will set out herein, but it should be mentioned that no other definite and essential allegation of the relationship of doctor and patient is contained in the petition.

'II

'On the evening of January 14, 1953, Plaintiff slipped and fell, hitting his right leg fracturing the fibula a few inches below the knee and fracturing the tibia approximately three inches above the ankle. There was no compound fracture, the skin was not broken or fractured. Plaintiff was taken to Saint Francis Hospital and Defendant was called to attend him. Defendant did then accept Plaintiff as a patient for diagnosis and treatment of his injuries.

'III

'Defendant continued to treat the Plaintiff at various intervals and performed several operations on the leg. On...