JOHN T. ACTON, Appellant,
NORMAN H. MORRISON, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Judgment reversed and case remanded with directions.
Mr. W. H. Chester and Mr. Herbert Watson, for Appellant.
Mr. H. M. Van Denburgh, for Appellee.
Ross, C. J. Stanford and LaPrade, JJ., concur.
Ross, C. J.
[62 Ariz. 140] This is an appeal from an order dismissing plaintiff's action on the ground that it was barred by limitation.
On May 21, 1942, plaintiff filed his complaint against the defendant, a duly licensed dentist, for damages for malpractice in performing certain professional services upon plaintiff's teeth, in the months of July and August, 1935. It is alleged, in substance, that plaintiff's wisdom teeth in his lower jaw were impacted, and that defendant was employed to remove them; that he performed such professional services in July or August, 1935, as follows:
"(a) Defendant negligently and carelessly allowed a portion of a dentist drill to be broken off, embedded and left in the jawbone of the plaintiff; (b) defendant negligently and carelessly allowed a portion of a hypodermic needle to be broken off, embedded and left in the jawbone of the plaintiff";
that he represented by his acts and words that the work had been done in a skillful and capable manner, and that plaintiff would have no more trouble by reason of the removal of his teeth or the work done; that such representations were false and known to be false by defendant and made with intent to induce plaintiff to believe that said work had been done skillfully, capably and carefully; that said representations were made for the purpose of concealing from plaintiff the true facts and to avoid liability for his negligent acts.
By reason of such false representations plaintiff had no other work done nor examination of his teeth or jaw except as hereinafter alleged, but that he became sick and sore and disabled as a consequence of the [62 Ariz. 141] embedded metals in his jaw, and that he was forced to, and did, expend large sums of money in an attempt to discover the cause of his illness; that he became rheumatic and suffered a long period of illness; that he consulted defendant again in the fall of 1939, whereupon defendant took X-rays of his teeth and jawbone, and thereafter wrongfully and fraudulently represented
to him that he had no disorders of the jawbone or his teeth, and that the work performed by defendant was skillful and capable; that plaintiff thereafter suffered from sickness and disability, and in October or November, 1941, he visited another dentist who took X-rays of plaintiff's jaw and advised him that defendant had allowed a portion of a dentist drill and a hypodermic needle to be broken off, embedded and left in the jawbone, and that a portion of the jawbone, in which the dentist drill was lodged, had to be removed; that the hypodermic needle could not be removed without removing a portion of the jawbone and other sound teeth, and was left in the jawbone.
The defendant filed a motion to dismiss the action on the grounds, (1) that the complaint fails to state a claim upon which relief can be granted; (2) that more than two years have elapsed from the date of the alleged injury and the bringing of the action, and therefore the action is barred by Section 29-202, Arizona Code Annotated 1939; and (3) that ...