Seanor v. Browne, Case Number: 20678

CourtSupreme Court of Oklahoma
Writing for the CourtCLARK, V. C. J.
Citation154 Okla. 222,1932 OK 61,7 P.2d 627
Decision Date26 January 1932
Docket NumberCase Number: 20678
PartiesSEANOR v. BROWNE.

1932 OK 61
7 P.2d 627
154 Okla. 222

SEANOR
v.
BROWNE.

Case Number: 20678

Supreme Court of Oklahoma

Decided: January 26, 1932


SYLLABUS

¶0 1. Limitation of Actions--Two-Year Statute Applicable to Tort Action Against Physician for Malpractice.

An action for malpractice, negligence, carelessness and unskillfulness of a physician, in treating a patient, though based upon a contract of employment, is an action in tort, and governed by the two-year statute of limitations, as the contract of employment is merely the inducement and right of the physician to treat the patient.

2. Same--Three-Year Statute Applicable to Cause of Action for Breach of Oral Contract to Cure Plaintiff.

While the gravemen of the action as pleaded in the petition is in tort, and the petition shows on its face that the tort action is barred by the statute of limitations of two years, yet, where plaintiff pleads a special oral contract that defendant agreed to cure an injury of plaintiff for a reasonable fee and compensation, and pleads a failure of defendant to perfect said cure, and pleads the amount paid defendant for such service, held, the special contract thus pleaded is governed by the three-year statute of limitations, and a general demurrer to the petition on the grounds that the action is barred by the statute of limitations should be overruled where the special oral contract action is not barred.

3. Pleading -- Sufficiency of Pleading as Against General Demurrer.

A general demurrer addressed to the whole of a pleading should be overruled if the pleading states facts entitling the party pleading to any of the relief claimed.

Appeal from District Court, Kay County; Claude Duval, Judge.

Action by Leola Seanor against Howard S. Browne. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Wieck & Armstrong and D. E. Hodges, for plaintiff in error.

W. R. Withington and David L. Carter, for defendant in error.

CLARK, V. C. J.

¶1 This is an action commenced in the district court of Kay county by plaintiff in error herein against defendant in error herein. The parties, appearing here as they appeared in the trial court, will be designated plaintiff and defendant.

¶2 The plaintiff alleged in her petition as follows:

"1. That the said defendant at all times herein mentioned and prior thereto was a practicing physician and surgeon duly licensed to and practicing his profession in Ponca City, Kay county, Okla., and at all times herein mentioned represented himself to be well informed and skillful in the operation of a certain machine, designated as an X-ray machine, and that said defendant held himself out to the public in general and to this plaintiff in particular as having a thorough knowledge of the operation of such machine and its skillful use in the treatment of physical ailments, illness and disease of the human body and of the effect of X-ray produced by said machine upon the human body.

"2. Plaintiff alleges that sometime prior to the 1st day of January, 1923, she has suffered a slight fracture of and to the tibia or shin bone of the right leg; that on or about the day of , 1925, the exact date being at this time unknown to plaintiff, the said plaintiff at the special instance and request of the said defendant, retained and employed the said defendant for a reasonable fee and compensation to be paid therefor as such physician and surgeon and operator of such X-ray machine to properly treat such injury above mentioned and to attend to, cure, and heal the same; and the said defendant then and there undertook and entered upon said retainer and employment and orally contracted and agreed to carefully and skillfully attend to, treat, and cure said injury and orally agreed to apply said X-rays in a careful and skillful manner to said injury; and plaintiff alleges that pursuant to said agreement so entered into between the plaintiff and defendant, she submitted and subjected herself to treatments given by said defendant up to about the 19th day of January, 1926.

"3. Plaintiff further alleges that instead of the said defendant being skillful in the operation of said machine and instead of having a thorough knowledge of the operation of said machine, and the effect which said machine and rays thereby produced would have upon plaintiff when placed upon the
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17 practice notes
  • Morris v. Sanchez, Nos. 63675
    • United States
    • Supreme Court of Oklahoma
    • November 10, 1987
    ...all liability under any theory of law. Rather, I would recognize the viability of a contract action. Cf. Seanor v. Browne, 154 Okl. 222, 7 P.2d 627 (1932). In discussing contract liability the Szekeres case "[I]f a physician or someone else is found to have contracted to prevent a pregnancy......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...994; Id., 176 A.D. 893, 162 N.Y.S. 1124; Webber v. Herkimer & M. St. Ry. Co., 109 N.Y. 311, 16 N.E. 358. OKLAHOMA: Seanor v. Browne, 154 Okla. 222, 7 P.2d 627; Herron v. Miller, 96 Okla. 59, 220 P. 36; Fort Smith & W. Ry. Co. v. Ford, 34 Okla. 575, 126 P. 745, 41 L. R. A., N. S., 745. PENNS......
  • Great Plains Federal Sav. and Loan Ass'n v. Dabney, No. 69930
    • United States
    • Supreme Court of Oklahoma
    • January 26, 1993
    ...to oral contracts. Consistent with this view is a case relied on by both parties to support their respective positions, Seanor v. Browne, 154 Okla. 222, 7 P.2d 627 (1932). Seanor holds although the gravamen of an action against a physician is in tort, where a special oral contract is also a......
  • Cirafici v. Goffen, No. 79-1407
    • United States
    • United States Appellate Court of Illinois
    • June 10, 1980
    ...135, 196 A.2d 129. An agreement to cure a fractured leg by X-ray treatments was found sufficient to proceed in Seanor v. Browne (1932), 154 Okla. 222, 7 P.2d 627. Plastic surgery proposed on the plaintiff's nose in Sullivan v. O'Connor (1973), 363 Mass. 579, 296 N.E.2d 183, in order to enha......
  • Request a trial to view additional results
17 cases
  • Morris v. Sanchez, Nos. 63675
    • United States
    • Supreme Court of Oklahoma
    • November 10, 1987
    ...all liability under any theory of law. Rather, I would recognize the viability of a contract action. Cf. Seanor v. Browne, 154 Okl. 222, 7 P.2d 627 (1932). In discussing contract liability the Szekeres case "[I]f a physician or someone else is found to have contracted to prevent a pregnancy......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...994; Id., 176 A.D. 893, 162 N.Y.S. 1124; Webber v. Herkimer & M. St. Ry. Co., 109 N.Y. 311, 16 N.E. 358. OKLAHOMA: Seanor v. Browne, 154 Okla. 222, 7 P.2d 627; Herron v. Miller, 96 Okla. 59, 220 P. 36; Fort Smith & W. Ry. Co. v. Ford, 34 Okla. 575, 126 P. 745, 41 L. R. A., N. S., 745. PENNS......
  • Great Plains Federal Sav. and Loan Ass'n v. Dabney, No. 69930
    • United States
    • Supreme Court of Oklahoma
    • January 26, 1993
    ...to oral contracts. Consistent with this view is a case relied on by both parties to support their respective positions, Seanor v. Browne, 154 Okla. 222, 7 P.2d 627 (1932). Seanor holds although the gravamen of an action against a physician is in tort, where a special oral contract is also a......
  • Cirafici v. Goffen, No. 79-1407
    • United States
    • United States Appellate Court of Illinois
    • June 10, 1980
    ...135, 196 A.2d 129. An agreement to cure a fractured leg by X-ray treatments was found sufficient to proceed in Seanor v. Browne (1932), 154 Okla. 222, 7 P.2d 627. Plastic surgery proposed on the plaintiff's nose in Sullivan v. O'Connor (1973), 363 Mass. 579, 296 N.E.2d 183, in order to enha......
  • Request a trial to view additional results

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