Roush v. Wolfe
| Citation | 243 Ky. 180 |
| Parties | Roush v. Wolfe. |
| Decision Date | 25 March 1932 |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Jefferson Circuit Court
WOODWARD, HAMILTON & HOBSON for appellant.
L.R. CURTIS and HUFFAKER, HOGAN & BERRY for appellee.
Affirming.
Appellant, who was plaintiff below, on October 4, 1930, brought this suit against the appellee, a licensed and practicing physician of the city of Louisville, and in his petition averred that in September, 1929, he employed the appellee and the appellee agreed for compensation to remove appellant's tonsils, and that, in conformity with this contract, the appellee, on September 3, 1929, performed an operation on appellant by which he pretended to remove the appellant's tonsils, but in truth and fact did not, and that after the operation appellee informed appellant that he had removed appellant's tonsils. Appellant further averred that, by reason of the appellee's failure to remove the tonsils, he had been damaged to the extent of the money he had expended for the operation, which appellee did perform, and for the time lost while he was disabled as a result of the operation performed, and in general damages for the physical pain and mental anguish he suffered as the result of appellee's failure to remove the tonsils. The appellee filed his answer in three paragraphs, the first of which was a traverse, the second, a plea of contributory negligence, and the third setting up the one-year statute of limitations. Appellant demurred to paragraph 3 of the answer, and on the demurrer being overruled, and the case being submitted to the court on the pleadings, the court dismissed appellant's petition, and, from the judgment so entered, this appeal is prosecuted.
This case was treated in the court below and is briefed in this court solely on the question whether or not the action was barred by the one-year statute of limitations. If so, it is conceded the action of the trial court in dismissing the petition was right, but, if not, the judgment should be reversed. By chapter 92 of the Acts of 1916, section 2516 of the Kentucky Statutes, the one-year statute of limitations, was amended by the Legislature to meet the opinions of this court in Menefee v. Alexander 107 Ky. 279, 53 S.W. 653, 21 Ky. Law Rep. 980, and Wood v. Downing's Admr., 110 Ky. 656, 62 S.W. 487, 23 Ky. Law Rep. 62, and the cases which followed those opinions. These cases held that an action against a physician for malpractice was one ex contractu and governed by the five-year statute of limitations rather than the one-year statute of limitations applicable to actions for injuries to the person. Section 2516 supra. By the amendment of 1916, it was expressly provided that "an action against any physician or surgeon for negligence or malpractice" shall be commenced within one year next after the cause of action accrued and not thereafter. Appellant insists, however, that his petition in the instant case is not one for malpractice, but for failure of the physician, the appellee, to carry out the contract he made to remove appellant's tonsils, which, being so, it is an action ex contractu, and does not come within the 1916 amendment to section 2516 of the Statutes. Though couched in language sounding in contract, and although in the petition now under consideration, neither lack of skill nor negligence is charged, yet the basis of the charge is improper performance of the work undertaken by the appellee to the personal injury of the appellant. Appellant does not rest his claim on the fact that appellee failed to perform any operation or to enter into the treatment of appellant's malady after he had contracted to do so, but is grounded on the fact that, although he undertook to perform an operation after having contracted to do...
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