Griffin v. Woodhead

• Decision Date: 01 December 1909
• Citation: 74 A. 417,30 R.I. 204
• Parties: GRIFFIN v. WOODHEAD.
• Court: Rhode Island Supreme Court

74 A. 417

30 R.I. 204

GRIFFIN

v. WOODHEAD.

Supreme Court of Rhode Island.

Dec. 1, 1909.

Exceptions from Superior Court, Providence and Bristol Comities; Willard B. Tanner, Presiding Justice.

Action by Katherine Griffin against Raymond Woodhead. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

Hugh J. Carroll, for plaintiff.

Gardner, Pirce & Thornley (William W. Moss, of counsel), for defendant.

BLODGETT, J. The declaration in this case alleges, in substance, that the defendant, a physician whom plaintiff had employed, so unskillfully and negligently conducted himself in the caring for a broken hip that permanent shortening of her leg has resulted. The defendant pleads that the cause of action did not arise within two years, to which the plaintiff has demurred. The superior court held the plea to be good. The plaintiff also seeks to avoid the bar of the statute by a replication alleging that "the plaintiff was residing without this state for a long period of time, to wit, for more than one year, after the happening of the matters set forth in her declaration and before the commencement of said action," and the defendant's demurrer thereto was sustained by the superior court. The plaintiff has duly excepted to these decisions, and brings the case here.

The decision of the superior court sustaining the demurrer to the replication is correct, and we pass to a consideration of the question raised by the plea.

The statutes of limitation relative to injuries to the person are sections 248, 249, and 250, Court and Practice Act 1905, as follows:

"Sec. 248. Actions for words spoken shall be commenced and sued within one year next after the words spoken, and not after. Actions for injuries to the person shall be commenced and sued within two years next after the cause of action shall accrue, and not after.

"Sec. 249. Actions of trespass, except for injuries to the person, shall be commenced and sued within four years next after the cause of action shall accrue, and not after.

"Sec. 250. All actions of account, except on such accounts as concern trade or merchandise between merchant and merchant, their factors and servants, all actions of the case except for words spoken and for injuries to the person, all actions of debt founded upon any contract without specialty or brought for arrearages of rents, and all actions of detinue and replevin, shall be commenced and sued within six years next after the cause of action shah accrue, and not after."

The plaintiff claims that her declaration sounds in contract, and not in tort, and hence that the period of six years given by section 250 is available for her, rather than the period of two years specified in section 248. We do not find it necessary to decide whether the declaration in this "action on the case for malpractice," as it is therein styled, which begins by averring an employment of the defendant by the plaintiff as her physician for a suitable compensation and then avers a breach of duty in negligently and unskillfully attending the plaintiff, is to be considered as sounding in contract rather than in tort, for the...