Sellers v. Edwards, 6 Div. 924

• Court: Alabama Supreme Court
• Writing for the Court: MADDOX; HEFLIN
• Citation: Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (Ala. 1972)
• Decision Date: 03 August 1972
• Docket Number: 6 Div. 924
• Parties: Raymond L. SELLERS v. W. Sterling EDWARDS, III.

Page 438

265 So.2d 438

289 Ala. 2

Raymond L. SELLERS v. W. Sterling EDWARDS, III.

6 Div. 924.

Supreme Court of Alabama.

Aug. 3, 1972.

William W. Ross, George S. Brown, Birmingham, for appellant.

Lange, Simpson, Robinson & Somerville and White E. Gibson, Jr., Birmingham, for appellee.

MADDOX, Justice.

Plaintiff, Raymond L. Sellers, brought suit against Dr. W. Sterling Edwards, III, alleging and proving that a 'bulldog' clamp was left in his body during an operation performed by Dr. Edwards for an abnormal dilation of an artery, the surgery being performed on May 24, 1964.

After the surgery, Sellers made repeated complaints about pain in the area of the first operation. Almost two years later, an x-ray showed the presence of the clamp in the body near the spot of the first surgery. An operation was scheduled and performed to remove the clamp.

This suit was filed May 10, 1968. At the conclusion of the pleading, there were three counts left in the complaint. One charged a breach of contract, claiming that Dr. Edwards impliedly promised Sellers that the operation would be performed with such care, skill and diligence as surgeons in the same general neighborhood employ, and that Dr. Edwards breached this promise. Another count alleged that Dr. Edwards committed a trespass upon Sellers' body by sewing up the incision and leaving the clamp in the body. The other count alleged an assault and battery upon Sellers.

Dr. Edwards denied the allegations made by Sellers and also set up a defense of the Statute of Limitations of two years. Act No. 766, Acts of Alabama, 1953, p. 1027, published as Title 7, § 25(1), Code of Alabama, 1940 (Recompiled, 1958). Act No. 766 provides:

'All actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, whether based on contract, or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action, and not afterwards. Provided that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, provided further that in no event may the action be commenced more than six years after such act. . . .'

Appellant's main argument is directed at a portion of the court's oral charge wherein the court instructed the jury that if the jury were reasonably satisfied from the evidence that the leaving of the clamp in the plaintiff's body was Unintentional that the two year statute of limitation would apply and their verdict would be for the defendant. The jury found for the defendant.

Appellant cites in support of his position this court's case of Pizitz v. Bloomburgh, 206 Ala. 136, 89 So. 287 (1921). There, this court did affirm the action of the trial court in granting a motion for new trial on the ground that the court erred in giving, at the request of the defendant, this instruction:

'(7) To make out a case of assault and battery it must appear that the wrong or injury was intentionally done.'

This court stated in Pizitz that to maintain a civil action for damages for an assault and battery it is not essential that the infliction of injury upon the party assailed should be intended. Appellee does not dispute this principle of law, but claims that in this case it is inapplicable, since the facts here affirmatively show that the only possible cause of action was one for malpractice and that the statute of limitations barred such action.

The evidence in this case is clear to the conclusion that the cause of action is governed by the two year statute of limitation. The statute provides that 'all actions against physicians and surgeons, and dentists for malpractice, error, mistake, or failure to cure, Whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the cause of action. . . .' There is no contention made that Dr. Edwards did not have authority to perform the operation. The charge of assault and battery is based on nothing more than that the bulldog clamp was left in his body during the operation.

In view of these facts, error, if any, which resulted from the giving of the oral charge would be harmless Supreme Court Rule 45.

The crux of this case is whether the plaintiff filed his action in time. It is obvious that he did not file it...