Seanor v. Browne

• Decision Date: 26 January 1932
• Docket Number: Case Number: 20678
• Citation: 154 Okla. 222,1932 OK 61,7 P.2d 627
• Parties: SEANOR v. BROWNE.
• Court: Oklahoma Supreme Court

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 injured portion of her limb hereinabove described, and wholly disregarding the said agreement hereinbefore alleged and contrary to such agreement, the defendant unskillfully, carelessly, and negligently operated said X-ray machine and did so unskillfully, carelessly, and negligently, contrary to his agreement, apply and give such treatments to this plaintiff in that said defendant did, on or about the 16, 17, 18 and 19 day of January, 1926, and on each of said days, apply said rays and X-ray treatment too often, too long at a treatment, and with too much power and severity so that instead of producing a cure of said injury and instead of properly and skillfully treating said injury, as agreed to, the said defendant did in fact aggravate said injury and by such carelessness and unskillful operation of said machine and by said treatments did grievously burn and sear the flesh of said limb and did further burn the bone of said limb at and around said prior injury to such an extent that said plaintiff was unable to use said limb and was confined to the hospital for a period of about six months and necessitated painful operations and treatments by physicians and surgeons in order to relieve the condition so caused by said defendant.

"4. Plaintiff further alleges and states that by reason of the treatments and injuries so given and inflicted and by reason of the defendant in failing to properly care for and treat said injury, this plaintiff was unable to earn her livelihood since on or about the 19th day of January, 1926, and up to the time of the filing of this action, and that the said injury is permanent and she will never be able to enjoy the use of her limb as she had before said treatments and injury and that by reason thereof plaintiff has suffered great physical pain and mental pain and anguish.

"5. Plaintiff further alleges that at all times mentioned in this petition and prior thereto she was and is now a duly licensed chiropractor, and that up to or on or about the 19th day of January, 1926, she was engaged in the practice of her profession in Ponca City, Okla.; that prior to the said 19th day of January, 1926, she was earning approximately $ 500 per month from the practice of her profession, but that since said date last mentioned she has been unable to pursue the practice of her profession or engage in any occupation and that her earning capacity ceased, and plaintiff alleges that by reason thereof she has been damaged in the sum of $ 25,000.

"6. The plaintiff further alleges that by reason of the failure of said defendant to comply with his said agreement and by reason and on account of the injuries so carelessly and negligently inflicted, she has been compelled to employ and retain physicians and surgeons and on that account thereof she has incurred and paid for necessary medical and surgical care and attention the sum of $ 2,100, and has further incurred and paid for necessary hospital expense the sum of $ 1,000; and plaintiff alleges that she paid to said defendant for his fees and treatments the sum of $ 350.

"7. Plaintiff further alleges that by reason of the mutilation of her said limb and by reason of the physical pain and discomfort caused by the failure of said defendant to properly care for, treat, and cure said plaintiff as agreed to by said defendant, she has suffered damages in the sum of $ 10,000.

"Wherefore, plaintiff prays judgment against said defendant in the sum of $ 38,450, and for the costs of this action."

¶3 To the petition of plaintiff defendant filed demurrer on the grounds:

"1. That the petition fails to state sufficient facts to constitute a cause of action in favor of the plaintiff and against this defendant.

"2. That there is a misjoinder of causes of action.

"3. That this cause of action is barred by the statute of of limitation as the same appears and is set forth,

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