Merchants National Bank v. Morriss

• Decision Date: 31 July 1959
• Docket Number: No. 5452.,5452.
• Parties: The MERCHANTS NATIONAL BANK, Executor, Defendant, Appellant, v. Bernice I. MORRISS, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

269 F.2d 363 (1959)

The MERCHANTS NATIONAL BANK, Executor, Defendant, Appellant, v. Bernice I. MORRISS, Plaintiff, Appellee.

No. 5452.

United States Court of Appeals First Circuit.

July 31, 1959.

James E. Mitchell, Bangor, Me., with whom John W. Ballou and Mitchell & Ballou, Bangor, Me., were on brief, for appellant.

Bartolo M. Siciliano, Dexter, Me., for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Circuit Judge (Retired).

This case was begun by a complaint filed in the United States District Court for the District of Maine, founding jurisdiction upon diverse citizenship and alleging in substance that Dr. Albert W. Fellows negligently wounded plaintiff's hand with a needle, thus introducing foreign matter, and that plaintiff suffered substantial damage from a resulting infection. Since Dr. Fellows had meanwhile died, the action was brought against the bank as the executor of his estate.

Also because of Dr. Fellows' demise, plaintiff was held incompetent to testify concerning events during Dr. Fellows' life, under the "dead man" statute, Me. R.S. c. 113, § 119. At trial before a jury, the plaintiff introduced the sworn testimony of her daughter-in-law, Joan, her son, Glen, and a Dr. Adams, who was stipulated to be a medical expert. By agreement of the parties, the plaintiff without being sworn demonstrated the present movability of her injured hand and answered questions of Dr. Adams as to pain caused by certain motions. At the close of plaintiff's case defendant rested and moved for a directed verdict, which was denied. The jury returned a verdict for plaintiff in the amount of $4,990; defendant's motions for judgment notwithstanding the verdict or a new trial were denied, judgment was entered on the verdict, and defendant appealed.

On the evidence presented, the jury might reasonably have found the following facts: In October, 1948, plaintiff was visiting Joan and Glen and their two daughters, aged fifteen months and thirty months, who then lived in Maine. The older child had been sick, and Joan made an appointment with Dr. Fellows for a physical examination of both children. Dr. Fellows had an excellent reputation as a physician and a specialist in pediatrics.

During the physical examinations Dr. Fellows asked whether the children had been vaccinated, and Joan agreed that he should then vaccinate them against smallpox. The only other person in Dr. Fellows' office was a receptionist in another room; there was no nurse. Dr. Fellows requested that plaintiff, who was holding the younger child, place her on a stool and hold her there.

The plaintiff assumed a position at the right of the child and facing in the same direction, and placed her right hand on the child's right hip, her left arm around the child's waist and her left hand at the child's left hip. The palm of each hand was against the child, the thumb grasping the child's back and the fingers extended forward.

Dr. Fellows then administered a vaccination high on the child's left arm.¹ He then dropped his hand abruptly, said "She is through", whirled, and went into another room.² Joan described the doctor's movements as very quick and his manner as brusque. Plaintiff, after the doctor left, held out her left hand and said: "Look, he stuck me." (Defendant objected to Joan's relation of this statement.) Joan observed a puncture at the base of the index finger and blood thereabout, and gave plaintiff a cleansing tissue to place over it.

Plaintiff removed the younger child to the waiting room and left her with Joan's mother. Joan placed the older child on the stool and held her; the doctor returned with materials for the second vaccination; plaintiff returned and watched; and vaccination of the older child was completed. The Morrisses paid a fee to the receptionist and left without mentioning plaintiff's wound to Dr. Fellows. The whole party went to the car, where Glen was waiting, plaintiff showed the wound to Glen, and they all entered the car and drove home.

A few days later a redness and swelling of plaintiff's hand at the base of the index finger became apparent, which became severe and spread somewhat. After nine days she consulted Dr. Adams,³ who found an acute infection which he later diagnosed as severe reaction to a vaccination against smallpox. Dr. Adams continued to treat the plaintiff for almost a month, during which time she was hospitalized for a short period.

Plaintiff had at the time of trial some residual limitation in movement of her left hand and pain when these limitations were exceeded, which symptoms were not present before the infection in question. She sustained $145 in medical expenses, and was unable to work as a practical nurse but was employed as a housekeeper.

Defendant raises three points on the merits of the case on this appeal: (1) That the evidence was insufficient to authorize the jury to find for plaintiff; (2) that hearsay evidence was erroneously admitted; and (3) that the statute of limitations barred the filing of the complaint. We think that the third point is well taken and that the complaint should be dismissed. Hence we shall make no comment upon the first two alleged errors, and on another issue raised as to the limitations on witnesses' mileage taxable as costs.

Defendant's contention that the present action was barred by the statute of limitations is based on Me.R.S. c. 112, § 93, which provides that:

"Actions for assault and battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years after the cause of action accrues."⁴

An action is commenced by the making of a writ intending that it be served forthwith. Me.R.S. c. 112, § 103; see Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. This action was begun October 12, 1954, just four days less than six years after the tort alleged. But plaintiff argues, and the district court held, that § 93 is inapplicable because plaintiff was not a patient of Dr. Fellows, so that the general provision of Me.R.S. c. 112, § 90 (VII), allowing six years for the institution of "all other actions on the case", governs.

Neither counsel nor the court have been able to discover any pertinent construction of the statute or definition of "malpractice" by the state court, or even any authority directly in point from other jurisdictions. We are therefore completely unaided in our task of seeking the legislature's meaning.

In the first place, it is obvious that "negligence to a patient" is an unacceptable definition. A doctor driving his car down the street might negligently run over a patient without being entitled to the two-year limitation period. And an Ohio case has held that that state's counterpart of § 93 rather than its...