Frechette v. Ravn

• Decision Date: 14 March 1911
• Parties: FRECHETTE v. RAVN.
• Court: Wisconsin Supreme Court

145 Wis. 589

130 N.W. 453

FRECHETTE

v.RAVN.

Supreme Court of Wisconsin.

March 14, 1911.

Appeal from Circuit Court, Lincoln County; A. H. Reid, Judge.

Action by Thomas Frechette against Michael Ravn. From an order overruling a demurrer to the second defense in the answer, plaintiff appeals. Affirmed.

This is an action for malpractice brought against the defendant, who is a physician and surgeon. On February 11, 1904, the plaintiff suffered injuries to his hands and right wrist. He applied to the defendant for medical and surgical treatment, which resulted in the amputation of his right hand at the wrist joint. Several bones in his left hand were broken, and this injury was also treated by the defendant. Plaintiff brings this action for malpractice to recover damages in the sum of $20,000, setting up two causes of action in his complaint: (1) Alleging negligent and unskillful treatment which resulted in the unnecessary amputation of his right hand; and (2) alleging that, by reason of the negligent and unskillful manner in which the defendant examined and administered to plaintiff's injuries, the bones which were broken in his left hand were not set in place until eight days after the injury, as a result of which the fingers of said hand have become stiffened and the usefulness of the hand impaired, and that plaintiff has suffered great physical pain. The answer of the defendant is a general denial, and, as a second defense to each of the two causes of action, defendant alleges that he began his treatment of the plaintiff's injuries on the 11th of February, 1904, and that plaintiff left his care and treatment on February 25, 1904, and after that date received no further medical or surgical attention from him; that this action was commenced on February 4, 1910; and that no notice in writing as required by subdivision 5, § 4222, St. 1898, has ever been served on said defendant. Plaintiff demurred to the second defense set out in defendant's answer, which demurrer was overruled. This appeal is taken from the order overruling plaintiff's demurrer.Van Hecke & Fisher, for appellant.

Smart, Van Doren & Curtis, for respondent.

BARNES, J. (after stating the facts as above).

The plaintiff has divided what is probably a single cause of action into two causes of action. No objection has been taken to the division, however, and we mention it lest the opinion should be construed as an approval of the method of pleading pursued. The wording of the two causes of action differs only in the recital of the character of the injuries, and both causes of action fall within the same category. For convenience in the subsequent discussion we will treat the complaint as though it contained but a single cause of action.

For the purposes of discussion in this case, we will assume, without deciding, that, if the action is based on contract, the one-year limitation contained in subdivision 5, § 4222, St. 1898, has no application to it. The action is plainly one to recover damages for injury to the person, and if it is in tort the one-year limitation referred to applies. The complaint states a good cause of action in tort, and it is apparent from the allegations therein found that the pleader intended to state a cause of action sounding in tort. It alleges that the defendant was employed to treat the plaintiff, but does not set forth what the contract duties of the defendant were in the premises, and does not allege in terms that any contract obligation was breached. It does set forth that the defendant negligently and unskillfully examined the plaintiff and arrived at a wrong conclusion on such examination and negligently operated upon the plaintiff in an unskillful manner. Damages are asked for mental pain and suffering as well as for the injury to the hands and arms of the plaintiff. Such damages are hardly recoverable in an action on contract. Walsh v. Railway Co., 42 Wis. 23, 24 Am. Rep. 376;Brown...