Phelps v. Donaldson

• Citation: 142 So.2d 585
• Decision Date: 13 June 1962
• Docket Number: No. 588,588
• Parties: Frances PHELPS, Individually and as Administratrix of the Estate of the Minor, Meade Phelps, Plaintiff-Appellant, v. Dr. K. V. DONALDSON, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 585

142 So.2d 585

Frances PHELPS, Individually and as Administratrix of the Estate of the Minor, Meade Phelps, Plaintiff-Appellant, v. Dr. K. V. DONALDSON, Defendant-Appellee.

No. 588.

Court of Appeal of Louisiana, Third Circuit.

June 13, 1962.

Rehearing Denied July 5, 1962.

Watson, Williams & Brittain, by Arthur C. Watson, Denis, Natchitoches, for plaintiff-appellant.

Stafford & Pitts, by Grove Stafford, Sr., Alexandria, for defendant-appellee.

Before FRUGE , SAVOY and HOOD, JJ.

FRUGE , Judge.

This is a damage suit for alleged malpractice brought against defendant-appellant, Dr. K. V. Donaldson, by plaintiff-appellant, Mrs. Frances Phelps, individually and as administratrix of the estate of her minor child, Meade Phelps. Plaintiff has appealed from a judgment dismissing her suit.

The suit was originally filed on the 29th day of October, 1958, Natchitoches Parish, Louisiana, where plaintiff lives. The defendant, an orthodontist from Alexandria, Louisiana, excepted to the jurisdiction, based upon his residence there, and said exception was sustained. On January 31, 1959, the suit was re-filed in Rapides Parish.

Plaintiff alleges that on July 3, 1955, she employed the doctor, an orthodontist, to straighten her daughter's teeth and that he accepted the employment and worked on the little girl for a period of two years. Further, she avers that in November, 1957 she realized that the doctor had done his work improperly, and made demand upon the defendant that he return the money she had paid him for his services plus $1,000.00, the amount she figured it would cost to undo his work. Plaintiff describes the doctor's treatment of her daughter as 'negligent and careless'.

Taking the allegations of the petition as true, the First suit in Natchitoches Parish, filed there on the 29th day of October, 1958, was timely, in that it was filed within a year of the time that Mrs. Phelps claims that she learned about the result of Dr. Donaldson's treatment, i.e., in November of 1957.

The facts, as brought out by the record, appear to be different from the allegations in plaintiff's petition.

On July 17, 1957 plaintiff's attorneys wrote to Dr. Donaldson complaining of his alleged negligent treatment of Meade Phelps and made claims for damages. On the strength of this letter, and of the knowledge that plaintiff had when it was written, defendant filed a plea of prescription of one year. Passing upon the issue and sustaining the defendant's plea in part, the trial judge said:

'The letter written by plaintiff's attorneys on July 17, 1957, obviously contradicts the testimony of Mrs. Phelps that she did not take Meade to another orthodontist until November of 1957. This letter also clearly indicates that the plaintiff, on the date thereof, knew all of the facts regarding the acts of negligence and improper treatment which she has alleged in her petition. Since these facts were known to the plaintiff more than a year before she filed suit in Natchitoches Parish, The defendant's plea of prescription of one year as to plaintiff's tort action must be sustained.' (Tr. 18.)

The trial court held, however, that plaintiff's alternative demand, based upon an Alleged breach of Contract, had not prescribed, so to that extent he overruled the plea of prescription, and permitted her to go forward with her suit.

Defendant filed a motion for a rehearing but it was overruled. After this the defendant answered, denying the negligence charged against him, further denying that he had guaranteed a 'cure' as claimed, or had in any wise entered into a Contract guaranteeing the results of his treatment. The defendant renewed the plea of the prescription of one year. The case was tried and submitted on briefs. In a written opinion, the judge sustained the plea of the prescription of one year as to the alternative demand and dismissed the suit. He held that plaintiff had failed to prove a contract that would support her alternative demand. From the judgment plaintiff has appealed.

In order to escape the defendant's plea of prescription, plaintiff strongly suggests that she has a cause of action for breach of Contract, in action subject to the plea of prescription of ten years.

After thoroughly reviewing the facts and applicable law, the trial judge stated:

'Plaintiff, having alleged the existence of a contract, has the burden in law to satisfactorily establish by a preponderance of the evidence that such contract was entered into by the parties. A mere reading of the foregoing testimony is at once convincing that plaintiff has not borne the burden resting upon her to prove that Dr. Donaldson guaranteed to effect the corrections desired relative to Meade Phelps' teeth. As a matter of fact, the testimony is most convincing that instead of Doctor Donaldson binding himself to a definite guarantee, Mrs. Phelps drew her own conclusions from what he said as she so well expressed it when she testified: 'He gave me to believe that he would straighten the teeth. '' (Tr. 13.)

In the past, other plaintiffs have attempted by the same means as the plaintiff herein, to breathe life into dead causes of action in tort but have been unsuccessful.

Such an attempt was made in the case of Sizeler v. Employers' Liability Assur. Corp., Ltd., La.App., 102 So.2d 326. Plaintiff, a passenger for hire, brought suit against the carrier's insurer for injuries sustained through the alleged negligence of the carrier. The suit was filed more than a year later, so a plea of prescription was filed by the defendant. The plaintiff there, as here, attempted to maintain her action as one for breach of contract of passage. The court did not agree. In its opinion the court stated:

'Defendant pleaded the prescription of one year, which as we have said hereinabove was maintained by the trial court; hence this appeal.

'Plaintiffs insist (a) that their suit against the defendant as the insurer of Stephens Buick Company is predicated upon a contract of carriage and therefore the prescriptive period of ten rather than one year is applicable herein * * *.'

Plaintiff's contention was rejected, the court saying:

'Plaintiffs' initial contention that an action against a carrier for personal injuries does not prescribe in one year from the date of the injuries is not legally tenable.'

The court's reasoning was as follows:

'There are, in certain relationships, duties imposed by law, and a failure to perform these obligations is considered as a tort though the relationships themselves may be created by contract encompassing the same subject. The case of a common carrier furnishes us with a classic illustration. The law requires it to carry with impartiality and safety, those who offer themselves as passengers. If it fails to do so, it is chargeable with tort, which action is...