Menefee v. Alexander

• Decision Date: 21 November 1899
• Citation: 53 S.W. 653,107 Ky. 279
• Parties: MENEFEE v. ALEXANDER. [1]
• Court: Kentucky Court of Appeals

53 S.W. 653

107 Ky. 279

MENEFEE v. ALEXANDER. ^[1]

Court of Appeals of Kentucky.

November 21, 1899

Appeal from circuit court, Grant county.

"To be officially reported."

Action by Frank Menefee against J. B. Alexander to recover damages for malpractice. Judgment for defendant, and plaintiff appeals. Reversed.

W. W Dickerson, for appellant.

HOBSON J.

Appellant filed this suit against appellee to recover damages for alleged malpractice by appellee as a physician in amputating his arm without proper care or skill, by reason of which, it is alleged, that he suffered great pain, and his arm was left in a very bad condition. Appellee pleaded, among other things, the one-year statute of limitation in bar of the action. Appellant demurred to this plea, and, his demurrer having been overruled, and judgment entered dismissing his petition, he has prosecuted this appeal.

The only question in the case is whether the one-year statute or the five-year statute applies to the action, as it is admitted that it is barred if the former, and not barred if the latter, applies to this class of cases. Section 2516 of the Kentucky Statutes is as follows: "An action for an injury to the person of the plaintiff, or of his wife, child ward, apprentice or servant, or for injuries to person cattle or stock, by railroads, or by any company or corporation; an action for malicious prosecution, conspiracy arrest, seduction, criminal conversation, or breach of promise of marriage; an action for libel or slander; an action for the escape of a prisoner, arrested or imprisoned on civil process, shall be commenced within one year next after the cause of action accrued and not thereafter." The question presented is whether the words, "an action for an injury to the person of the plaintiff," in this section, cover an action against a physician for negligence or want of skill in the treatment of a patient. In Newman on Pleading (page 404) it is said: "Where a person undertakes any profession, trade, or public business, the law presumes a promise or undertaking on his part to have and exercise reasonable knowledge, skill, diligence, and care in the performance of the business intrusted to him in the occupation in which he engages. An attorney, dentist, apothecary, physician, surgeon, etc., undertakes that he has knowledge and skill in his profession, and that he will exercise diligence and care in attending to the affairs intrusted to him. A mechanic undertakes to have and exercise skill in his trade. *** In these and other similar cases the law imposes a duty, and generally implies also a promise to perform that duty." So, in Bishop on Contracts (section 1416) it is said: "Whenever one enters into another's service, *** the law interpreting the contract adds to its general words *** his promise to bring to the work ordinary skill and capacity, together with integrity therein, and faithfulness to the interests of his employer; the sort of skill varying with the nature of the business and the holding out of the employé. Thus a physician, a surgeon, or dentist undertakes in law to supplement his reasonable care and honest...