Maddox v. Neptune, 39133

• Decision Date: 12 December 1953
• Docket Number: No. 39133,39133
• Citation: 175 Kan. 465,264 P.2d 1073
• Parties: MADDOX v. NEPTUNE.
• Court: Kansas Supreme Court

Page 1073

264 P.2d 1073

175 Kan. 465

MADDOX v. NEPTUNE.

No. 39133.

Supreme Court of Kansas.

Dec. 12, 1953.

Syllabus by the Court.

1. In an action to recover compensation for personal injuries resulting from post-operative treatment by a physician, the pleadings examined and it is held, plaintiff's cause of action was not founded on the theory of assault and battery but on the doctrine of negligence, the former being grounded on intentional injury, the latter on unintentional injury, and the action would be barred in two years, as provided by G.S.1949, 60-306, third, and not in one year as provided by Section 60-306, fourth.

2. Where a petition alleges a cause of action but does so imperfectly and with insufficient detail, and the additional allegations of an amended petition are only an enlargement and amplification of the averments of the original by setting out more definitely that which was previously imperfectly pleaded and do not set up a new cause of action, the fact that the statute of limitations has run when the amended petition is filed is not a bar to recovery, for in such a case the amended petition relates back to the date of filing of the original one.

C. H. Morris, Wichita, Robert F. Bailey, Wichita, and James W. Shaffer, Independence, Mo., on the briefs, for appellant.

LaRue Royce, Salina, E. S. Hampton, H. H. Dunham, Jr., John Q. Royce, H. G. Engleman and C. Stanley Nelson, Salina, on the briefs, for appellee.

WERTZ, Justice.

This is an appeal from an order of the trial court sustaining defendant's demurrer to plaintiff's amended petition. The appellant will be hereinafter referred to as plaintiff, and the appellee as defendant.

The question for decision involves the statute of limitations. Does the petition and the second amended petition state a cause of action for assault and battery, or a cause of action for malpractice? If the former, the one-year statute of limitations applies, G.S.1949, 60-306, fourth, and the trial court's ruling was correct. If the latter, the two-year statute applies, G.S.1949, 60-306, third, and the action was brought in time and the other should be reversed.

The injury complained of is alleged to have been sustained February 27, 1949, and the original action was filed December 29, 1950. The amended petition was filed March 15, 1952, and the second amended petition was filed October 23, 1952. The pertinent part of the original petition reads as follows:

'First: That at all times hereinafter mentioned Dr. Harold E. Neptune was a physician and surgeon, engaged in the practice of his profession in the City of Salina, Saline County, Kansas; that on the 19th day of February, 1949, plaintiff employed defendant, for a reasonable compensation, to be paid therefor by plaintiff to defendant, to operate on the bladder of plaintiff and remove bladder stones therefrom; that said operation was undergone on the 22nd day of February, 1949, at the St. John's Hospital at Salina, Saline County, Kansas, and that at said time a catheter was inserted in order to allow drainage from plaintiff's body; that on the 27th day of February, 1949, while plaintiff was still a patient in St. John's Hospital and still under the care and treatment of defendant, defendant, without plaintiff's consent and against plaintiff's explicit instructions, and while in an intoxicated condition, wilfully, deliberately, negligently and unskillfully conducted himself in and about the removing of said catheter from the plaintiff's body, and through his wilfulness, deliberateness, negligence and unskillfulness caused internal hemorrhaging in plaintiff, by reason whereof it became necessary for the plaintiff to undergo another operation thereby causing plaintiff great physical pain and mental suffering.

'Second: Further, plaintiff states that by reason of said wilfulness, deliberateness, negligence and unskillfulness as aforesaid, plaintiff was made sick and was put to great pain, trouble and anxiety; that plaintiff had suffered and will suffer great physical pain and mental anguish; that he suffered a severe and lasting shock to his entire nervous system; that all of the aforesaid injuries and injurious consequences are permanent, progressive and lasting.

'Third: That said assault upon plaintiff and violation of his bodily integrity, was wilful, wrongful, unlawful and legally malicious, and entitles him to recover punitive damage.

'Wherefore, by reason of the premises, plaintiff prays judgment against the defendant in the sum of * * *.'

To this petition the defendant filed a motion to make more definite and certain, dealing with the course of treatment and requiring him to set forth in detail certain facts. This motion was sustained in part and overruled in part. Defendant also filed a motion to strike from the original petition the words 'wilfully', 'deliberately', 'negligently' and 'unskillfully' and to strike paragraph 'third' from the petition. However, after the motion to make definite and certain was ruled upon, counsel for defendant withdrew his motion to strike. In compliance with the...