Hall v. De Saussure

• Decision Date: 21 June 1956
• Citation: 297 S.W.2d 81,297 S.W.2d 90,41 Tenn.App. 572
• Parties: William G. HALL v. Richard L. DE SAUSSURE.
• Court: Tennessee Court of Appeals

Page 81

297 S.W.2d 81

41 Tenn.App. 572

William G. HALL v. Richard L. DE SAUSSURE.

Court of Appeals of Tennessee, Western Section.

June 21, 1956.

Certiorari Denied by Supreme Court Oct. 5, 1956.

Rehearing Denied on Certiorari Dec. 7, 1956.

See 297 S.W.2d 90.

Wils Davis and L. E. Gwinn, Memphis, for plaintiff.

John S. Porter, Burch, Porter & Johnson, Memphis, for defendant.

BEJACH, Judge.

This cause involves a suit by William G. Hall, deceased, which has been revived in the name of his widow and executrix, Mrs. Janice C. Hall, against Dr. Richard L. DeSaussure, a neuro-surgeon, for damages for performing an operation upon the spine of William G. Hall, deceased, which defendant, Dr. DeSaussure, had not been authorized to perform, and which it is claimed that he expressly agreed not to perform. The main question involved in the cause, as same is presented in this court, is whether or not the suit is barred by the statutes of limitation of one year. There is one other question presented by the appeal which involves the ruling of the trial judge on the admissibility of certain evidence. It is conceded by plaintiff, the appellant in this court, that the suit was filed more than one year after the operation was performed, and that the one year statute of limitations is, in general, applicable to this character of lawsuits. It is contended, however, that the statute of limitations in question was tolled by fraudulent concealment on the part of the defendant, Dr. DeSaussure, of the nature of the operation which he had performed on plaintiff's spine, so that plaintiff did not discover the character of that operation until after the expiration of more than one year from the time the operation was performed. The suit was brought, as stated above, by William G. Hall during his lifetime, and within less than a year after he discovered that a portion of his spinal column had been removed.

For convenience, the parties will be styled as in the lower court, plaintiff and defendant, or referred to by their respective names.

The declaration filed in this cause is in two counts. The first count alleges that plaintiff was suffering great physical pain, which crossed the left clavicle, traveled down through the shoulder and left arm and to the left hand, as well as laterally across the left chest, and that plaintiff was referred to the defendant to get his advice about what could be done to relieve this pain. Plaintiff was advised by defendant that he should have a rhizotomy performed, which operation, defendant assured plaintiff was a very simple operation, consisting of a clipping or severance of the nerves leading through the pain area, by making an incision on the left side of the spine, parallel with same and approximately an inch to an inch and a half therefrom, the operation to be performed under a local anesthetic. This count of the declaration further alleges that plaintiff emphatically stated to defendant that if the operation involved surgery upon plaintiff's spinal column, he would not consider it nor allow it under any circumstances; and that defendant assured plaintiff that he would not enter the spinal column in performing the operation, but that same would be performed outside of the spinal column. It was further alleged that in response to an inquiry from plaintiff as to the effect upon his arm and hand, he was assured by defendant that there would be no loss of use, except for the loss of muscle tone, which would be negligible, and that the only uncomfortable result of the operation would be a deadening of sensation in the little finger, the ring finger, and the middle finger of the left hand. The declaration further alleges that upon the assurance of defendant that no spinal surgery would be performed, plaintiff entered into a contract with defendant to perform the operation above described and no other; and that thereafter on September 8, 1952, plaintiff, pursuant to said contract, submitted to an operation at the hands of defendant; that subsequent to the operation, plaintiff continued to suffer excruciating pain, and that this pain became so intolerable that he was forced to resort to the use of codeine in heavy quantities; that he lost the use of his shoulder and arm; and that in an effort to obtain relief, he consulted an orthopedic specialist, who made X-ray pictures which showed that the operation performed by defendant was not the operation authorized by plaintiff, but was an operation in violation of his agreement with defendant,--the operation actually performed being an operation upon the spine. The declaration further alleges that the operation performed by defendant, consisted of the removal of a portion of the sixth, seventh, and eighth cervical vertebra, a part of the first thoracic vertebra, and a portion of the disc on the left side, separating said vertebra, together with the clipping of nerves in the spinal column, all in violation of the express agreement between plaintiff and defendant.

The first count of the declaration alleges further that although the defendant had full knowledge of the manner and extent of the said operation, he wrongfully, purposefully, and fraudulently concealed from plaintiff that he had performed an operation contrary to the contract.

Count two of the declaration alleges, in substance, that the operation performed by defendant upon plaintiff was an unlawful assault and battery resulting in the injuries alleged in the first count; and that this operation was performed September 8, 1952, contrary to the agreement between plaintiff and defendant.

The defendant filed a plea of not guilty, and also, a special plea that plaintiff's action was not brought within one year after the cause of action accrued. Defendant later filed an additional plea stating that the rhizotomy was performed Sept. 8, 1952, with the consent and approval of the deceased, William G. Hall.

Plaintiff filed a replication which alleged that the defendant fraudulently concealed from the plaintiff the nature of the operation, and defendant's breach of his contract with plaintiff, and that the suit was brought within less than one year after the plaintiff's discovery of the breach of contract by defendant, consisting of the performance of an illegal and unauthorized operation.

A rejoinder was filed by the defendant.

The cause was tried before the court and a jury. At the conclusion of plaintiff's proof, the trial judge sustained defendant's motion for a directed verdict, on the ground that the cause of action was barred by the one year statute of limitations. A motion for a new trial was seasonably filed and exceptions taken to the action of the trial court in overruling same. An appeal in the nature of a writ of error was prayed, granted, and duly perfected, and assignments of error were filed in this court which raise the questions to be decided here. In addition to the question of whether or not the cause should have been submitted to the jury, the assignments of error filed in this court raise one additional question, viz., whether or not the trial judge erred in excluding certain testimony of Mrs. Janice C. Hall, which testimony was heard by the judge in the absence of the jury and is preserved in the bill of exceptions.

In determining the question of whether or not the cause should have been submitted to the jury, this court must, of course, take the view of the evidence most favorable to plaintiff's contentions, drawing all legitimate inferences from the facts tending to support plaintiff's cause of action. Prudential Ins. Co. of America v. Davis, 18 Tenn.App. 413, 429, 78 S.W.2d 358, 368; Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 249 S.W. 984; Tennessee Cent. R. Co. v. McCowan, 28 Tenn.App. 225, 188 S.W.2d 931; Tyrus v. Kansas City, Ft. S. & M. R. Co., 114 Tenn. 579, 86 S.W. 1074; Smith v. Sloan, 189 Tenn. 368, 225 S.W.2d 539, 227 S.W.2d 2; Chapman v. Evans, 37 Tenn.App. 166, 168, 261 S.W.2d 132; Good v. Tennessee Coach Co., 30 Tenn.App. 575, 209 S.W.2d 41; Jarratt v. Clinton, 34 Tenn.App. 670, 241 S.W.2d 941.

The testimony offered in support of plaintiff's declaration consisted of the deposition of William G. Hall, deceased, taken a few days before his death, the deposition of Dr. J. J. Weems, and the oral examination of Mrs. Janice C. Hall, and of Mr. William M. Hall, father of William G. Hall, deceased. We deem it unnecessary to quote the testimony in detail, except as to that portion of same involved in connection with the assignment of error questioning the exclusion of certain testimony of Mrs. Janice C. Hall. From the testimony offered by plaintiff, the following facts appear.

Plaintiff, William G. Hall, during his lifetime first consulted defendant in defendant's office where he informed him that he did not wish to have anything done to his spine; that he had a horror of that type of operation because of his fear that it would paralyze him; and that he wanted it understood that if any operation was to be performed on his spinal column, he would not have the operation. Neither William G. Hall, deceased, nor Mrs. Janice C. Hall who as Executrix has been substituted as plaintiff in his stead, had ever heard of a rhizotomy; and it was explained to them by defendant that it consisted of a clipping of the ends of certain nerves; and in response to an inquiry, defendant assured Mr. and Mrs. Hall that the only effect of the operation would be a deadening of the little finger, and to a certain extent, the ring finger and middle finger. Defendant also assured Mr. and Mrs. Hall that the spinal column would not be invaded, that the nerves in question would be clipped about an inch to an inch and a quarter from the spinal column.

Following the operation, William G. Hall lost the use of his shoulder and arm to such an extent that when he was on his back he could not get up without assistance. He claims that the first knowledge he had that defendant had...