133 P. 412 | Ariz. | 1913
On July 3, 1912, appellant filed his complaint against appellee for damages. On the theory that it was an action for personal injuries, the court sustained a special demurrer raising the one year statute of limitations. It is not necessary to state the facts of the original complaint; suffice it to say that it contained, in legal effect, the facts alleged in the amended complaint which was filed on October 14, 1912. In the amended complaint the appellee, which we shall hereafter designate as the mining company, is described as a corporation engaged in the business of mining, smelting, railroading, merchandising and conducting of hospitals in Green-lee county, Arizona. It is alleged that the mining company owned and conducted at Clifton, Metcalf and Morenci hospitals for gain and profit; that, for the purpose of shielding itself from actions for damages for negligence and malpractice of its physicians and surgeons, said hospitals are carried on under the name of Clifton Accident Benevolent Society, which is not a copartnership nor a corporation, but is á general hospital business conducted, owned and managed by the mining company in connection with its other business for hire, gain, and profit.
“That, in consideration of said payment of said sum of money to the defendant from month to month, the defendant contracted and agreed with the plaintiff to furnish plaintiff with hospital accommodations in said hospitals and to provide and furnish trained and capable nurses and skilled and competent physicians and surgeons in said hospitals for the care and treatment of the plaintiff in the event that he should become sick or disabled or accidentally injured while working for the defendant and in the regular course of his employment, and contracted and agreed, for the consideration aforesaid, to furnish the plaintiff with the services of skilled and competent physicians and trained and capable nurses in case of any injury to the plaintiff while working for the defendant as aforesaid. (5) That under said contract of employment, and in consideration of the payment by the plaintiff to the defendant from month to month of the said sums of money while plaintiff worked for the defendant, it became and was the duty of the defendant, in ease the plaintiff should become injured while working for the defendant under said contract, to furnish the plaiutiff with proper hospital accommodations and to treat him with due care and skill therein and furnish him the services of skillful and competent physicians and surgeons and trained and capable nurses, and to use and exercise due and reasonable care in the selection of such nurses and physicians and surgeons; but the plaintiff alleges that, on the contrary, the defendant, neglecting and disregarding its duty in the premises and under said contract and agreement with the plaintiff, when the plaintiff became injured while working
There follows-the allegations of accidental injury by a fall in which appellant’s left femur, hip joint, and left leg were greatly injured, his entrance into the hospital on September 29, 1908, for treatment, where he remained until February 18, 1910, when he was sent by the mining company to the Presbyterian Hospital at Chicago for further treatment, where he was treated until June 5, 1910, when he was discharged. That the first examinatioin of his injury in September, 1908, was negligent and unskillful and without due care and a failure to discover that the leg was broken or the femur fractured, and of incompetent treatment until February 10, 1909. That on the last-mentioned date the physician and surgeon in charge discovered that the femur was fractured and performed an operation thereon and left foreign matter in and about said fracture which tended to prevent a union thereof, and that the treatment thereafter was negligent and unskillful until February 10, 1910, when appellant was sent to Chicago, as aforesaid. There is the allegation that the mining company did not exercise due care and caution in the selection of its physicians and surgeons, and that it retained them in its employment after knowledge of their unfitness and incompeteney.
To this amended complaint there was interposed a general demurrer and special demurrer raising the one, three, and four year statute of limitation. The demurrers were sustained.
The cause of action stated in the amended complaint being the same cause of action as alleged in the original complaint, we must look to the date of filing the latter to determine if, when the action was brought, limitation had run.
It is not an action for personal injury nor for malpractice by the mining company. The complaints, both original and amended, allege a contract between appellant and mining com
The contract upon which this suit is based is pleaded as an express contract, but it is not shown whether it is a written or verbal contract. If the contract was verbal, the right to sue for a breach thereof is limited to three years from its accrual, as provided in subdivision 1, paragraph 2951, Revised Statutes of 1901. This provision of our statute was taken from Texas (article 3354, Revised Statutes), and the courts of that state have held that a suit for damages for a breach of a verbal contract is an action for “debt” within the meaning of the statute. Wood M. & R. Co. v. Hancock, 4 Tex. Civ. App. 302, 23 S. W. 384.
If the indebtedness sued for is founded upon a contract in writing, the action should be commenced and prosecuted within four years after the cause of action accrued as provided in paragraph 2954, Revised Statutes of 1901.
When did the appellant’s cause of action accrue? Under the contract as alleged, the moment the appellant was injured it became incumbent upon the appellee mining company to act by furnishing him hospital accommodations, skilled and competent physicians and surgeons and trained nurses. The allegation is that it undertook to do that, but failed to furnish
In Aachen & M. F. Ins. Co. v. Morton, 156 Fed. 654, 13 Ann. Cas. 692, 15 L. R. A., N. S., 156, 165, 84 C. C. A. 366, LURTON, J., speaking for the court, said: “If an act occur, whether it be a breach of contract or duty which one owes another or the happening of a wrong, whether willful or negligent, by which one sustains an injury, however slight, for which the law gives a remedy, that starts the statute. That nominal damages would be recoverable for the breach or for the wrong is enough. The fact that the actual or substantial damages were not discovered or did not occur until later is of no consequence. The act itself, which is the ground of action, cannot be legally separated from its consequences. Were this so, successive actions might be brought in many cases of contract and tort as the damages developed, although all the consequential injuries had one common root in the single original breach or wrong. This would in effect nullify the statute.”
It seems to be the conceded law by practically all the authorities that in cases of breach of contract the statute of limitations begins to run against the right of the person damaged to recover from the time of the breach, and not from the time actual damages are sustained in consequence thereof. Case note, Aachen & M. F. Ins. Co. v. Morton, supra.
“Whether the negligence out of which the cause of action arises is the breach of an implied contract, or the affirmative disregard of some positive duty, is immaterial. In either case
The mining company agreed to furnish the appellant, in ease of sickness or injury, certain kind of service—good service, skilled service—and when it presented inferior and inefficient service the terms of the contract were violated and the statute began to run. The wrong done appellant was not so much the incorrect diagnosis of his injuries, but the furnishing of incompetent and unskilled physicians and surgeons, from which the wrong diagnosis may have been the result. He contracted for a superior quality of skill and knowledge,, but when he called for it he was given incompeteney. That was certainly the injury from which all subsequent damages followed.
Under the contract, however, it was not enough to furnish skilled and competent physicians and surgeons. The contract contemplated and the law implied that the injury of appellant should be diagnosed with skill and that it should be-competently treated thereafter. The charge is incompeteney of the surgeons, incorrect diagnosis, and negligent, incompetent and careless treatment. We may assume that, if the-surgeon had possessed necessary knowledge and skill, thediagmosis and treatment would have been proper. If that be true, then the chief primal wrong consisted in placing over-appellant unskilled and incompetent physicians and surgeons. It might present a different question, however, if the physicians and surgeons had been skilled and competent and the-injury consisted in unskillful, incompetent and negligent treatment of the patient. In the latter case, although we do-not so decide, it is possible the statute would not begin to-run until the patient was discharged.
We also think the complaint is good as against the general demurrer. Railway and mining companies that establish hospitals for profit and gain occupy the position of ordinary physicians and surgeons and are bound by the same rules. If they undertake to furnish treatment, not as a charity, they stand in no different light from the ordinary physician. Phillips v. St. Louis etc. R. Co., 211 Mo. 419, 124 Am. St. Rep. 786, 14 Ann. Cas. 742, and note, 17 L. R. A., N. S., 1167, 111 S. W. 109.
The judgment is reversed, and the ease remanded for further proceedings not inconsistent with this opinion.
FRANKLIN, C. J., and CUNNINGHAM, J.} concur.
Application for rehearing denied.
NOTE.—As to the running of the statutes of limitations in cases when a cause of action for nominal damages ripens into a right to actual damages, see note in 126 Am. St. Rep. 944.