Sellers v. Noah
Decision Date | 04 January 1923 |
Docket Number | 7 Div. 337. |
Citation | 95 So. 167,209 Ala. 103 |
Parties | SELLERS v. NOAH. |
Court | Alabama Supreme Court |
Rehearing Denied Feb. 8, 1923.
Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.
Action for damages by D. L. Noah against N.E. Sellers. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Affirmed.
W. C Tunstall, of Anniston, and Coleman, Coleman, Spain & Stewart of Birmingham, for appellant.
Merrill & Allen, of Anniston, for appellee.
The appellee was awarded a judgment for damages in his action against appellant, a surgeon, who, the complaint charges breached his contract with appellee in performing an operation for appendicitis upon appellee. The breach averred consisted in leaving a "needle or a portion of a needle" in the appellee's body.
The counts declare upon the breach of the surgeon's contract. They are not in tort; the reference to negligence therein being but descriptive of the method or means whereby the contract was breached. W. U. Tel. Co. v. Crumpton, 138 Ala. 632, 641, 36 So. 517. This construction of the counts confirms the correctness of the trial court's action in eliminating the plea of the statute of limitations of one year, applicable, upon proper occasion, to actions ex delicto. In operating upon or treating a patient a surgeon's duty is to bring to the service and to exercise Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863, and cases therein cited.
At the instance of the plaintiff the court gave the jury this special instruction, numbered 1:
There was evidence directed to showing that a needle or a part of a needle was left in the body at the time defendant operated on him for appendicitis, and that it "worked out" about three years later, meantime causing plaintiff pain and physical disability, and that the place on the surface of plaintiff's body where the needle appeared, and from which it was removed, was very near, if not at the point where the incision was made by the surgeon. There was evidence to the contrary. If, as the quoted instruction hypothesized, the jury concluded that the needle was left in the body of the plaintiff by the surgeon at the time...
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Billings v. Sisters of Mercy of Idaho, 9382
...complaints in terms of contract for the longer period of limitation, instead of the tort statute of limitations. In Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), a needle was left in plaintiff's body. He alleged a breach of contract and successfully avoided the earlier commencement of t......
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Wyler v. Tripi
...courts now allow a plaintiff to sue for breach of contract so as to take advantage of a longer statute of limitations. Sellers v. Noah (1923), 209 Ala. 103, 95 So. 167. See, also, cases collected in 74 A.L.R. 1320, and 144 A.L.R. 215. Nevertheless, it is still the majority view that injurie......
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Whetstine v. Moravec
... ... Munro, R.I., 83 A. 82; Davis v ... Kerr, 239 Pa. 351, 86 A. 1007, 46 L.R.A.,N.S. 611; ... Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Sellers ... v. Noah, 209 Ala. 103, 95 So. 167; Hall v ... Grosvenor, 267 Ill.App. 119; Armstrong v ... Wallace, 8 Cal.App.2d 429, 47 P.2d 740; ... ...
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Rosson v. Hylton
... ... body of the patient in the course of an operation, the rule ... of res ipsa loquitur applies. 48 C. J. 1143; Sellers v ... Noah, 209 Ala. 103, 45 So. 167; Alt v. Hall, ... 119 Ohio St. 422, 164 N.E. 518; Davis v. Kerr, 239 ... Pa. 351, 86 A. 1007, 46 L. R. A. N ... ...