Frogge v. Shugrue

• Decision Date: 08 May 1940
• Citation: 13 A.2d 503,126 Conn. 608
• Court: Connecticut Supreme Court
• Parties: FROGGE et al. v. SHUGRUE.

13 A.2d 503

126 Conn. 608

FROGGE et al. v. SHUGRUE.

Supreme Court of Errors of Connecticut.

May 8, 1940

Appeal from Superior Court, Hartford County; Alfred C. Baldwin Judge.

Malpractice action by Alfred S. Frogge and wife against F. J. Shugrue for damages for wife's sickness alleged to have been caused by infection resulting from defendant's leaving the root of an extracted tooth in wife's jaw. Verdict for defendant and from judgment thereon, plaintiffs appeal.

No error.

A. Storrs Campbell and F. Anthony Francis, both of Hartford, for appellants.

Cyril Coleman, of Hartford, for appellee.

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

BROWN Judge.

This is an action of malpractice brought by the plaintiffs, husband and wife, against the defendant dentist, the complaint claiming a recovery upon two grounds, first that he failed to remove the root tips of a tooth broken off in extracting it from the mouth of the wife, hereinafter called the plaintiff and secondly that he failed to inform her that these tips remained in her jaw. The defendant denied the essential allegations of the complaint but offered no evidence at the trial. The jury returned a verdict in his favor. The plaintiffs have appealed solely on the ground of claimed errors in the court's charge. The plaintiffs' claims of proof disclose that the first of the two grounds of action above mentioned was abandoned.

The following material facts which the plaintiffs claimed to have proved, for the purposes of this appeal, stand undisputed. The defendant has been engaged in the general practice of dentistry in Hartford for years. In March, 1929, the defendant having advised the plaintiff that pain of which she complained was due to an impacted wisdom tooth in her lower left jaw, extracted the tooth and informed her that there was a pus sac on it. Following a period of temporary relief the pain recurred, and in September, 1929, the defendant extracted the plaintiff's lower right wisdom tooth. The plaintiff, continuing to have headaches and pains in various parts of her body, again consulted the defendant in 1929, and he told her there was no infection from her teeth. From this time until 1938 the plaintiff lived a life of almost complete invalidism, consulting many doctors and submitting to operations for the removal of her tonsils, appendix and gall bladder, but the pain in the left side of her face and in other parts of her body persisted. In March, 1938, an X-ray taken by another dentist revealed for the first time two root points of the left lower wisdom tooth broken off, and left in the jaw bone from the first tooth extracted by the defendant. These roots were removed, and from that time the plaintiff gradually regained her normal health. The defendant never informed the plaintiff or her physicians of the existence of these broken roots in her jaw, although he was in touch with her throughout her illness. By reason of the defendant's failure to give her this information the plaintiffs claimed to recover for all the damage incident to her subsequent ill health, all of which damage was alleged to have resulted therefrom.

The plaintiffs' claim in argument that the allegations of fraudulent concealment, contained in their reply to meet the defense of the Statute of Limitations in the defendant's answer, are effective to afford them a cause of action for fraud is without merit. A cause of action not stated in the complaint may not be interjected into the case through the medium of a reply. Watson v. Ruderman, 79 Conn. 687 689, 66 A. 515; Mackey v. Dobrucki, 116 Conn. 666, 671, 166 A. 393. Upon this record the sole ground upon which to predicate a verdict for the plaintiff is the defendant's failure to inform her that the broken roots remained in her jaw. Knowledge of the defendant, either actual or constructive, that the roots did so remain is a prerequisite to liability on this score. As was said by the Virginia court of the defendant in a case on all fours with the one before us: ‘ If he had no knowledge of such a condition he could be under no obligation to disclose it. Nor can it be said that he wrongfully concealed from her a condition of which he had no knowledge.’ Alexander v. Hill, 6 S.E.2d 661, 662, 664. The only statement in the finding relative to the defendant's knowledge is that the plaintiff offered evidence to prove that: ‘ The defendant when he extracted the plaintiff's lower wisdom tooth by the exercise of due care, should have known that he left the broken roots in the plaintiff's jaw. ...