Williams v. Edmondson

• Decision Date: 17 March 1975
• Docket Number: No. 74--169,74--169
• Citation: 257 Ark. 837,520 S.W.2d 260
• Parties: Loree Cavin WILLIAMS, widow of Ralph Hollis Williams, Deceased, Appellant, v. C. T. EDMONDSON, M.D., and H. W. Ward, M.D., Appellees.
• Court: Arkansas Supreme Court

Page 260

520 S.W.2d 260

257 Ark. 837

Loree Cavin WILLIAMS, widow of Ralph Hollis WilliamsDeceased, Appellant, v.C. T. EDMONDSON, M.D., and H. W.Ward, M.D., Appellees.

No. 74--169.

Supreme Court of Arkansas.

March 17, 1975.

Rehearing Denied April 21, 1975.

Frierson, Walker, Snellgrove & Laser by David N. Laser, Jonesboro, for appellant.

Smith, Williams, Friday, Eldredge & Clark, Little Rock, Putman, Davis & Bassett, Fayetteville, for appellees.

BYRD, Justice.

This medical malpractice action was filed by appellantLoree Cavin Williams, on April 6, 1973, in Benton County, as executrix of the Estate of Ralph Hollis Williams on behalf of both the estate of the decedent and the widow and next of kin.It was alleged that the decedent died February 18, 1973.The complaint in so far as here pertinent with respect to appelleeC. T. Edmondson alleged:

'The defendant, C. T. Edmondson, M.D., is a resident of Washington County, Arkansas and is a licensed and practicing physician specializing in the field of radiology and said physician practices among other places, in Benton County, Arkansas, on or about the 7th through the 9th days of April, 1971, at which time said defendant did read and interpret an X-ray taken of the chest of plaintiff's decedent at the Bates Memorial Hospital, Bentonville, Arkansas as further described hereinafter.'

The allegation with respect to appelleeH. W. Ward is as follows:

'The defendant, H. W. Ward, M.D., is a licensed and practicing physician specializing in the field of radiology and practicing his profession in Benton and Washington Counties, among other places, and did at all times hereinafter mentioned, practice his specialty in taking, reading and interpretating X-rays, particularly X-rays of plaintiff's decedent's chest made at Bates Memorial Hospital, Bentonville, Benton County, Arkansas, on or about 31st day of March 1970, through the 1st day of April 1970.'

The complaint then alleges that Dr. Ward failed to adhere to that degree of care and skill expected and required of him in reading an X-ray of the chest of the decedent Ralph Hollis Williams made in April 1970.A like allegation was made with respect to a chest X-ray read by Dr. Edmondson on April 7, 1971.

Appellant caused summons to be issued and delivered to the sheriff of Washington County.The summons upon Dr. Ward was promptly served at his home in Washington County.The summons issued for Dr. Edmondson was returned unserved on April 11, 1973, with the notation: 'Unable to serve.Subject lives in Benton County, per Deputy Colvard.'On April 19th, the sheriff's office wrote to appellant's counsel:

'Dear Mr. Williams:

'We are this date returning to Benton County Clerk's office Summons in Circuit Court ref C. T. Edmondson, M.D.defendant in above mentioned case.

Dr. Edmondson does not maintain an office in Washington County.He has a residence in Benton County, 3/4 mile west of Little Wheel Grocery, and comes into Springdale on Tuesdays and Thursdays to read X-rays at the Springdale Memorial Hospital.

However, when we tried to reach him this day, we were advised by Dr. Ward that Dr. Edmondson is on vacation for two weeks.

Yours very truly,

By: /s/ Marjorie Roberts Civil Process Office

:mr

P.S.The Little Wheel Grocery is on Hwy. 71, north of Springdale.'

On April 13, 1973, appellant caused another summons to be issued for Dr. Edmondson directed to the sheriff of Benton County which was served on April 16th.

On July 2, 1973, the trial court sustained Dr. Ward's demurrer to the complaint on the ground that the controlling statute of limitation, Ark.Stat.Ann. § 37--205(Repl.1962), had run during decedent's lifetime.On the same day the trial court sustained Dr. Edmondson's motion to quash the summons issued on April 6, 1973, to the sheriff of Washington County.

On July 31, 1973, appellant filed an amended complaint essentially repeating the allegations of the original complaint in so far as the individual acts and omissions of the doctors are concerned but added an allegation that the doctors were partners--by answers subsequently filed the latter allegation is admitted.The trial court sustained a demurrer of Dr. Edmondson to any action on behalf of the estate of the decedent but left standing the action for wrongful death on behalf of the widow and next of kin.A demurrer was sustained on behalf of Dr. Ward as to all allegations except those relating to his vicarious liability for the acts or omissions of Dr. Edmondson under Lord Campbell's Act.Appellant elected to stand upon the pleadings and the trial court entered a dismissal of all actions except as to the wrongful death action by the widow and next of kin against Dr. Edmondson and Dr. Ward's vicarious liability therefor.For reversal appellant raises the issues hereinafter discussed.

POINT I. Appellant here contends that her action filed on April 6, 1973, was properly commenced as against Dr. Edmondson and tolled the applicable statute of limitations, Ark.Stat.Ann. § 37--205(Repl.1962).That statute provides:

'Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within two (2) years after the cause of action accrues.The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.'

Ark.Stat.Ann. § 27--301(Repl.1962), with reference to commencement of actions provides:

'A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties. . . .'(Emphasis ours.)

Obviously before Dr. Edmondson can prevail on statute of limitations, he must show that Washington County was not a proper county for the service of the summons.In this connection Ark.Stat.Ann. § 27--330(Repl.1962), as to method of service provides that the method of service shall be by personally delivering a copy of the summons to the defendant or by leaving a copy of the summons at the usual place of abode of the defendant with some member of the defendant's family over 15 years of age.Of course, where a summons is directed to a county other than the defendant's residence, we have recognized that actual service will relate back to the date of issuance but that unless the summons is issued to the sheriff of a county where it may be served the issuance thereof does not toll the statute of limitation until it is actually served, Sims v. Miller, 151 Ark. 377, 236 S.W. 828(1922).Furthermore, Ark.Stat.Ann. § 27--309(Repl.1962), provides:

'The summons shall be made returnable twenty (20) days after the issuance thereof unless otherwise ordered by the court.'

In J. H. Hamlen & Son v. Allen, 186 Ark. 1104, 57 S.W.2d 1046(1933), we held that a summons served after the return date thereof, was properly quashed.

However we do not agree that the action of the circuit court in quashing the original summons issued to Washington County on April 6, 1973, was proper.Dr. Edmondson moved to quash the summons, so the burden of proving facts supporting the motion was upon him.Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762(1970).In other words, it was up to him to show that Washington County was not a proper county to which the summons could be issued in order to commence the action.The record discloses that the return day of the summons was twenty days after the date of issuance, and that Dr. Edmondson regularly came to the Springdale Memorial Hospital on Tuesdays and Thursdays to read X-rays, but when the Washington County sheriff tried to reach Dr. Edmondson there on April 19, Dr. Ward advised him that Dr. Edmondson was on a two-week vacation.There is no information in the record as to the terminal dates of the vacation.Between April 6, 1973, and April 26, 1973, Tuesdays fell on the 10th, 17th and 24th and Thursdays fell on the 12th, 19th and 26th.It was reasonably to be anticipated that Dr. Edmondson could have been served with summons on any of these dates.The return on the summons was dated April 11 but it remained in the hands of the sheriff of Washington County until he sent it to the attorneys for appellants by letter dated April 19.Since the terminal dates of the vacation were not shown, it is only reasonable to assume that the summons could have been served on Dr. Edmondson on the 10th, 12th or 17th, if that is important.It is also entirely possible that if the summons had not been returned prematurely, it could have been served on the 24th.The point is, there was nothing to show that it was unreasonable for appellants to believe that the summons could be served on Dr. Edmondson in Washington County between April 6 and April 26, 1973.Furthermore, the sheriff was not told that Dr. Edmondson was on vacation until April 19.

In considering the words in the statute now before us(Ark.Stat.Ann. § 27--301(Repl.1962)), in only a slightly different context we said that the term 'proper county'(proper court?) used in the statute had been 'defined to mean the county of defendant's residence or where the defendant may be served with process.'Sims v. Miller, 151 Ark. 377, 236 S.W. 828(1922).There we were determining the 'proper county' insofar as filing the complaint in a transitory action was concerned.The General Assembly amended the statute by Act 32 of 1961.Prior thereto, and when Sims was decided, the pertinent part of the statute read: 'A civil action is commenced by filing int he office of the clerk of the proper court a complaint and causing summons to be issued thereon.'The amendment added at the end of this sentence the words 'and placed in the hands of the sheriff of the proper county or counties.'(Emphasis ours.)In choosing the words 'proper county' it certainly should be presumed that the legislature knew the meaning ascribed by us to...