Howard v. Middlesborough Hospital

• Decision Date: 04 March 1932
• Citation: 242 Ky. 602,47 S.W.2d 77
• Parties: HOWARD v. MIDDLESBOROUGH HOSPITAL et al.
• Court: Kentucky Court of Appeals

47 S.W.2d 77

242 Ky. 602

HOWARD v. MIDDLESBOROUGH HOSPITAL et al.

Court of Appeals of Kentucky

March 4, 1932

Appeal from Circuit Court, Bell County.

Suit by Boyd Howard against the Middles-borough Hospital and others. From a judgment dismissing the suit, plaintiff appeals.

Affirmed.

R. L Pope, of Knoxville, Tenn., and J. H. Taylor, of Pineville for appellant.

W. T Davis, of Pineville, for appellees.

PERRY J.

The appellant instituted suit against the appellees for the alleged unskillful and negligent manner of operating its hospital, when, by reason of appellees' inattention and negligence appellant, while a pay patient and delirious therein, was permitted to leap from the window of his third-story room in this hospital and which directly resulted in appellant's serious and permanent injury, for which, in this action, recovery of damages is sought.

By the averments of appellant's petition and amended petition, it appears that the defendant hospital was duly incorporated and operated for profit, and, further, that the codefendants, Drs. U. G. Brummitt, C. K. Broshears, and Jacob Schultz, were in charge and control of the operation and management thereof.

It is further averred by plaintiff that he was, in June, 1929, and just prior thereto, employed as a miner by the Southern Mining Company at Insull, Bell county, Ky. and that, pursuant to the custom of the said mining company and its employees, a certain amount of appellant's monthly wages was reserved by the company and applied, by their agreement, to providing a hospital fund for its employees, which the mining company had used in contracting with the defendants to receive in its hospital and there properly nurse, attend, and treat any and all of its employees who, by reason of sickness or accident while such, might become in need of such hospitalization, nursing, and medical treatment; that, pursuant to this contract made for his benefit, the appellant, upon becoming critically ill in June, 1929, was ordered taken to the defendant hospital, when delirious and in such a state of critical illness as to be unable to realize the danger to him of rash action thus arising through his delirium, but which was well known to the defendants, who, upon receiving him into said hospital in such condition, agreed to properly care for, nurse, and treat the plaintiff according to the exigencies of his case, but, notwithstanding such undertaking, the defendants, through gross negligence, failed to perform their undertaking, and that, by reason of their breach of this assumed duty, appellant was permitted on June 21, 1929, while in delirium, to jump from the window of his three-story room and fell with force as thereby to incur permanent and serious injury to his person. For this injury to his person, alleged to have directly resulted from appellees' negligence and breach of contract, plaintiff filed his suit on November 14, 1930, or more than one year after his cause of action accrued, in the Bell circuit court to recover damages thus suffered by him.

The defendants answered traversing the allegations of the petitions and pleaded the one-year statute of limitations in bar of the appellant's alleged right of action, as set out in his petition and amended petition, and to these pleas of limitation the appellant demurred. The court, having overruled his demurrers, did further, upon his declining to plead further, dismiss his action. Seeking a review and reversal of this judgment dismissing his petition, and petition as amended, he complains that the ruling of the trial court was erroneous in holding that the one-year statute of limitations, or section 2516 of the Kentucky Statutes, applied rather than section 2515, or contract statute, providing that "an action upon a contract not in writing, signed by the party, express or implied," and "an action for the injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated *** shall be commenced within five years next after the cause of action accrued."

The sole question presented for determination upon this appeal is whether appellant's action, seeking damages for injury to his person, was barred under section 2516, providing that "an action for an injury to the person of the plaintiff, or of his wife, child, ward, apprentice, or servant, or for injuries to persons, cattle or stock, by railroads, or by any company or corporation *** shall be commenced within one year next after the cause of action accrued, and not thereafter."

It is admitted that appellant's action is barred if the latter and not barred if the former section of the limitations statute applies to personal injury cases of this class.

The appellant contends in his brief that this action is not based on tort, but is one brought in assumpsit, and that the court should look to the wording of the allegations of his petition to see that it is thus one ex contractu, and that appellant had the right of election to maintain it as one in tort or in contract, when the provisions of section 2515 of Kentucky Statutes, or the five-year contract statute of limitations, as above quoted, would apply.

He cites as authority supporting him in this position the cases of Menefee v. Alexander, 107 Ky. 279, 53 S.W. 653, 21 Ky. Law Rep. 980, and Wood v. Downing, 110 Ky. 656, 62 S.W. 487, 23 Ky. Law Rep. 62, wherein it was held by this court that an action against a physician for malpractice is not "an action for an injury to the person," within the meaning and intent of section 2516, requiring such an action to be brought within one year after the cause of action accrued, but is rather an action for the breach of a duty assumed by defendant, for which assumpsit lay at common law, and therefore properly comes under section 2515, which allows "action on implied contracts, or for injuries to the rights of plaintiff not arising on contract, and not otherwise provided for, to be commenced within five years."

The rule thus announced in these two cases, supra, was later in 1908, and before the amendment of section 2516, considered and approved by the court in the case of Western Union Telegraph Co. v. Witt, 110 S.W. 889, 891, 33 Ky. Law Rep. 685, where, in an opinion delivered by Judge Carroll, in discussing the principle of these cases, it said: "It was held that the cause of action had its origin in a breach of duty committed by Alexander, who in undertaking to afford medical treatment to Menefee impliedly undertook that he was reasonably well qualified to perform the service, and that his failure to exercise reasonable skill was a violation of a contract duty that he assumed. *** Although the reasoning of this opinion and the conclusion reached is vigorously attacked as unsound, a re-examination of the question satisfies us of its correctness. The conclusion reached naturally follows from the well-grounded assumption that the cause of action originated in a breach of duty flowing from a contract relation, and the resulting damage had its foundation in the contract rather than in the injury to the person."

A thorough annotation of the multifold authorities bearing on this question can be found in volume 1 of A. L. R. 1311-1318, and its further and later annotation in 62 A. L. R., pages 1417 and 1418, where the case of Hickey v. Slattery, 103 Conn. 716, 131 A. 558, 559, is cited and wherein the court said: "The cause of action for negligence stated in the second count was barred, unless the action was begun within the time fixed by the statute. That fact would not, however, bar the cause of action stated in the first count; for two distinct causes of action may arise out of one delict, and where that occurs each is governed by the statute of limitations appropriate to it." Also, in the case of Patterson v. Augusta & S. R. Co., 94 Ga. 140, 21 S.E. 283, 284, it was declared: "Where a person makes a contract of this kind with a common carrier, and he is injured by the negligence of the carrier, he has two remedies,--one an action for the breach of contract, the other an action on the case for the wrong,--and he may elect which remedy he will pursue. If he elects to bring an action for the breach of contract, he has, under the Code, four years within which to bring it; if he elects to sue upon the tort, he has two years." And further it is therein noted the case of Crawford v. Duncan, 61 Cal.App. 647, 216 P. 573, where, in an action against a physician for breach of an alleged oral agreement, whereby he warranted that his radium treatments would not leave a permanent scar, it was held that the statute of limitations applicable was not a one-year statute relating to "injury to or for the death of one, caused by the wrongful act or neglect of another," but a two-year statute, relating, among other things, to parol contracts.

Also the rule as to limitation of actions of the class of the instant case is thus discussed in 17 R. C. L. 733: "Different statutes of limitation may apply to proceedings based on contracts and on torts. Cases may arise on the borderland between these two domains of...