Perrin v. Rodriguez

• Decision Date: 26 March 1934
• Docket Number: 14628
• Citation: 153 So. 555
• Court: Court of Appeal of Louisiana — District of US
• Parties: PERRIN v. RODRIGUEZ et al

153 So. 555

PERRIN v. RODRIGUEZ et al

No. 14628

Court of Appeal of Louisiana, Orleans.

March 26, 1934

Rehearing denied April 23, 1934.

Gerald B. Brown, of New Orleans, for appellant.

O'Niell & O'Niell and M. C. Scharff, all of New Orleans, for appellee.

OPINION

JANVIER Judge.

Defendant is a dentist practicing his profession in this city. Plaintiff employed him to remove certain defective teeth. This suit has for its object recovery for the damage claimed to have resulted from alleged negligence in removing two of the teeth, it being charged that portions of the roots of the said teeth were allowed to remain in the sockets in the jawbone of plaintiff.

The defense is a denial that any parts of any of the teeth were allowed to remain in plaintiff's mouth.

In the district court there was judgment for plaintiff for $ 1,335.65. Defendant has appealed.

Originally there were three defendants, E. J. Rodriguez and his two sons, which sons, according to the record, were, at the time of the removal of plaintiff's teeth, practicing dentistry as employees of their father. The judgment was rendered against E. J. Rodriguez alone and, since there has been no appeal by plaintiff, the only defendant with whom we are now concerned is the said E. J. Rodriguez. In this court defendant has filed a plea of prescription of one year contending that since the teeth were removed by defendant during the month of June, 1929, and since this suit was not filed until May 12, 1931, plaintiff's right, if it ever existed, is now barred by the prescription of one year, this being an action ex delicto to which the prescription set forth in article 3536 of the Civil Code is applicable.

Although the plea of prescription was not interposed in the trial court, nevertheless, it may, because of article 902 of the Code of Practice be considered and acted upon by us.

The facts on which the plea of prescription is based appear in the record, and, when we refer to that record, we note especially that though the alleged negligent act which is said to have caused the damage was committed in June of the year 1929, the fact that that act had caused damage was not known to plaintiff until August, 1930, because it was not until then that he consulted another dentist and was advised that the roots of some of the teeth were still embedded in the sockets of the bone of the jaw.

Usually the prescription which, after the lapse of one year, bars a claim for damage ex delicto, runs from the day on which the damage was sustained Civil Code, art. 3537 but there is an exception where there was no knowledge of the fact that there was damage or where, through some act of the party who caused the damage, the injured person is kept in ignorance of the fact that there has been damage or of the cause thereof.

The evidence shows that for about fourteen months immediately following the removal by defendant of plaintiff's teeth, defendant continued, at intervals, to attempt to alleviate the pain and to properly fit the plate or denture which he had made for plaintiff, and that, during all of that time, plaintiff was not aware of the fact that the roots were still embedded in his jawbone and were the cause of the pain.

Under such circumstances the prescriptive period did not commence to run until plaintiff discovered that he had sustained injury and that it had resulted from the negligence of defendant. So long as he continued to rely upon the professional advice of defendant, and so long as defendant continued to assure him that the pain was being caused by the denture or false teeth, there was no obligation on his part to commence his suit for redress. He could not sue because he did not know that he had sustained the injury as the result of the negligence of defendant. During that period the course of prescription was suspended. A defendant who either intentionally or unknowingly "succeeds in concealing from a creditor his cause of action cannot be allowed to reap the benefit of his own wrong." (Syllabus No. 3). Hyman v. Hibernia Bank & Trust Company et al., 139 La. 411, 71 So. 598. See, also, Bernstein v. Commercial National Bank, 161 La. 38, 108 So. 117. In McLaughlin v. Western Union Telegraph Company, 17 F.2d 574, 576, the United States Circuit Court of Appeals for the Fifth Circuit does not express a contrary view on this question. There the employee "knew the facts of his injury and that it was serious and actionable." Though it was held that the fact that he did not know the full extent of the injury did not prevent the running of prescription, the court, recognizing the soundness of the view which was followed in the above-cited cases, used this language: "It is only when one does not know that he has suffered an actionable injury that the statute is tolled." Nor can the decision of the Court of Appeal for the Second Circuit in Luke v. Caddo Transfer & Warehouse Company, 11 La.App. 657, 123 So. 444, 124 So. 625, 627 afford any comfort to defendant because there, too, though the court sustained the plea of prescription, it did so because immediately upon the occurrence of the accident which caused the damage the "injuries exhibited a present degree of certainty" and the nature and cause of the accident were well known to the injured party. In that decision is found approved the following quotation from an opinion of the Court of Cassation in the case of Chemin de Fer du Midi c. Paraire, Journal due Palais, 1877, page 281, from which we again...