Hillhouse v. McDowell

Citation410 S.W.2d 162,23 McCanless 362,219 Tenn. 362
Parties, 219 Tenn. 362 Maxie M. HILLHOUSE v. A. V. McDOWELL.
Decision Date09 December 1966
CourtSupreme Court of Tennessee

W. V. Doran, Memphis, Doran & Tucker, Memphis, of counsel, for plaintiff in error.

Leo Bearman, Sr., and Leo Bearman, Jr., Memphis, for defendant in error.

OPINION

BURNETT, Chief Justice.

The plaintiff in error filed a suit against the defendant in error, a duly licensed attorney of the Shelby County Bar, for his failure to prosecute a suit for malpractice against a certain doctor and a hospital in Memphis. The declaration was duly amended and a demurrer was filed to both the original and amended declarations, which the trial judge sustained. The ground of the demurrer was that the statute of limitations of one (1) year had run against the claim of the plaintiff in error against the defendant in error. Thus it is, that the sole issue here is, does the one year personal injury statute of limitations apply, in a suit sounding in contract against an attorney at law for his failure to institute a personal injury action in time, where the plaintiff in the suit against the attorney does not allege in his declaration that the attorney, defendant in error, caused the injuries to the person of plaintiff.

The declaration alleges that plaintiff in error had a cause of action for personal injuries against a doctor and hospital in Memphis and that this suit was turned over to the defendant in error on or about April 1, 1963. It is alleged that this doctor and hospital on or about September 1, 1962, were operating on plaintiff in error and negligently left a surgical needle in the incision thereby causing the plaintiff in error physical pain, suffering, injury and damage. It is further alleged that after this defendant in error was employed to institute this action for the plaintiff in error that nothing was done by the defendant in error until January 23, 1964, when he filed a summons and later a declaration; and that this action came on to be heard in September, 1965, and the suit of the plaintiff in error against the doctor and hospital was dismissed on the ground that the one year statute of limitations had run. It was after this that plaintiff in error brought the present action against the defendant in error, the attorney, on January 21, 1966, alleging the above and demanding a recovery in the amount of $20,000.00.

Reading the declaration as a whole, even though the arrival of the question of damages is based upon the malpractice of the doctor and the hospital, it is clear to us that the action is based on the contract that the plaintiff in error had with the attorney to institute this action, which he failed to do before the statute of limitations of one year had run on such action. Certain parts of the declaration in effect sound in tort, but these are negative in effect because there is nothing in the declaration to allege that the defendant in error caused or inflicted upon the plaintiff in error personal or bodily injuries, but that the injuries to the plaintiff in error are due to the negligence of the defendant in error in failing to institute this action within the statutory period. It seems to us that the allegations about the personal injuries which it is claimed this doctor and hospital inflicted upon the plaintiff in error are stated to show what damages the plaintiff in error has received, and they in no way allege that the plaintiff in error was damaged personally, or any injuries done to his person, by the defendant in error, and the whole reason for the lawsuit is the failure of the defendant in error to carry out his duties as an employed lawyer to file this action for these damages.

It seems to us that his declaration really is stating that the defendant in error caused the plaintiff in error a financial loss for negligently failing to do his duty as a lawyer and file this action within time. This action here is not for personal injuries or bodily injuries.

The trial judge in sustaining the demurrer herein largely based his opinion upon our case of Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377, 49 A.L.R.2d 1212, wherein he interpreted the Bland opinion as holding that whether or not a suit is for personal injuries or contract the court must look to the declaration to determine the real purpose of the lawsuit, and that in determining this the court must look to the basis for which damages are sought. We have no fault to find with such a holding, but feel that in so determining the matter under the allegations of this declaration the trial court has wholly overlooked the fact that this is an independent suit based against one for failure to carry out his contractual duties and not against one for doing some wrong to the person suing for his bodily injuries. Bland v. Smith, supra, is based upon the Court's findings that the declaration in that case alleged facts showing a breach of contract with consequential injuries to the party's person, and in such a situation the action is one for personal injuries, and if the declaration discloses that this is true the one year period of the applicable statute of limitations has expired and then the declaration is demurrable.

The one year statute of limitations, of course, is set out in T.C.A. § 28--304. In arriving at this conclusion in Bland v. Smith, supra, we said that upon a reading of the declaration we were lead to the conclusion that the plaintiff not only based his action upon tort but also upon injuries to his person and therefore this one year statute applied. In arriving at this we noted that the six year statute (T.C.A. § 28--309), which applied for breach of action of contracts, was applicable only where the recovery sought was based upon a contract and no element of personal injury, and that in this Bland case it was obvious that the plaintiff was seeking punitive damages as well as compensatory damages and that in this State as a general rule punitive damages were allowed only in tort actions involving fraud, malice, or gross negligence and not in actions of breach of contract. We cite this to show the Court's feeling in so deciding the Bland lawsuit.

Among other cases cited in the Bland case is that of Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100, 62 A.L.R. 1410. This case, that is Bodne v. Austin, was the first in this State to determine the question that was decided in the Bland lawsuit that you must look to the declaration to determine the real purpose of the lawsuit. We in making a study of the briefs and reading the various authorities cited and making an independent search thereof, and in reading the declaration herein are trying to apply this principle.

In Bland as in the Bodne case, our case of Bruce v. Baxter, 75 Tenn. 477, was cited and distinguished. The Bland case made the same distinction as was made in the Bodne case. It was said there that the Baxter lawsuit was a suit involving the breach of an attorney's contract to make certain collections wherein the Court held that the six year statute of limitations dealing with actions on contracts was held applicable, and in making this distinction it was said that the Baxter case was based purely upon a contract and did not involve the element of injury to the person. This was true. In the Baxter case though this very pertinent language is used by Freeman, J., when he said:

'* * * The recovery is claimed on the ground of breach of contract to collect, which involved an obligation to use...

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19 cases
  • Fitzgerald v. Congleton
    • United States
    • United States State Supreme Court of Vermont
    • October 19, 1990
    ...(Ct.App.1981) (attorney malpractice actions are governed by tort, not contract, statute of limitations), and Hillhouse v. McDowell, 219 Tenn. 362, 371-72, 410 S.W.2d 162, 166 (1966) (client's action against attorney for failure to prosecute personal injury suit within statute of limitations......
  • Woodruff v. Tomlin, 77-1216
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 24, 1979
    ...reasonable knowledge of well-settled rules of law as will enable him to perform the duties he undertakes. See also Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162 (1966). 1 The Stricklan decision itself recognizes that a Tennessee attorney may be held for legal malpractice. 2 The same ......
  • Woodruff v. Tomlin
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 21, 1980
    ...Collier v. Pulliam, 81 Tenn. (13 Lea.) 114 (1884) (liability for failure to bring suit upon an account). In Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162 (1966), the Supreme Court of Tennessee reversed a circuit court judgment for an attorney in a malpractice action. The legal malpra......
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    • United States
    • Court of Appeals of Tennessee
    • February 7, 2014
    ...only in the most egregious circumstances. Rogers v. Louisville Land Co., 367 S.W.3d 196, 211 n. 14 (Tenn.2012) ; Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162, 164 (1966) ; Next Generation, Inc. v. Wal–Mart, Inc., 49 S.W.3d 860, 866 (Tenn.Ct.App.2000) (“[I]n the absence of fraud, the......
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