Howard v. Middlesborough Hospital

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

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, [47 S.W.2d 78] 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...