Hahn v. Claybrook

• Decision Date: 31 January 1917
• Docket Number: 78.
• Parties: HAHN v. CLAYBROOK.
• Court: Maryland Court of Appeals

100 A. 83

130 Md. 179

HAHN v. CLAYBROOK.

No. 78.

Court of Appeals of Maryland

January 31, 1917

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

"To be officially reported."

Action by Mary Ellen Hahn against Edwin B. Claybrook. A verdict was directed for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Saul Praeger, of Cumberland, and Isaac Lobe Straus, of Baltimore (Fuller Barnard, Jr., of Cumberland, on the brief), for appellant.

James U. Dennis, of Baltimore (Dennis

& Dennis, of Baltimore, and Walter C. Capper, of Cumberland, on the brief), for appellee.

BRISCOE J.

This action was instituted, in the circuit court for Allegany county, on September 20, 1915, by the plaintiff against the defendant to recover damages for alleged professional negligence and unskillfulness between the years 1902 and 1910, in that the defendant negligently prescribed for the use of the plaintiff a drug called argentum oxide, and which was taken in such quantities, by her as the patient of the defendant, under his direction and treatment, as to cause silver poison, or a disease defined by dermatologists as argyria, which is a chronic pigmentation or discoloration of the skin, due to silver poisoning.

The declaration, in substance, avers that the defendant, between the years, 1904 and 1910, negligently, carelessly, and without using due care, caution, and skill on his part, while holding himself out as a practicing and competent physician in the city of Cumberland, Md., and while treating the plaintiff as a patient, negligently and carelessly, and without using due care and caution, treated the plaintiff and by his negligence, carelessness, and lack of skill caused the discoloration of the skin of the plaintiff to occur in the year 1913 and thereafter, and that the plaintiff used due care and caution, and followed all the directions given by the defendant to the plaintiff while he was acting as her physician, and has ever since the treatment used due care and caution; and by reason of the negligence, carelessness, and lack of skill used by the defendant, the plaintiff has been permanently injured and disfigured and greatly damaged, and claims therefor the sum of $20,000.

To the declaration the defendant filed two pleas: First, that the cause of action did not accrue within three years before the bringing of the suit; and, second, that he did not commit the wrongs alleged. The case was tried upon issue joined on replication to the first plea and traverse to the second plea. At the conclusion of the testimony upon the part of the plaintiff, the court below granted the defendant's second and fourth prayers, and directed a verdict for the defendant: First, because under the pleadings there was no evidence legally sufficient to entitle the plaintiff to recover; and, second, because there was no legally sufficient evidence that the plaintiff's cause of action accrued within three years prior to the filing of this suit.

If the court below was right in granting the defendant's fourth prayer and in ruling that the plaintiff was barred by the statute of limitations from maintaining this suit, then that disposes of the case, and the other questions become immaterial and are unimportant.

The question of the defense of limitations in the class of negligence cases, such as is presented by the record in this case, is not only one of considerable interest, but of importance, and we shall consider and dispose of it at the threshold of the case.

It is clear and well settled that if the plaintiff's right of action arose and accrued more than three years before the suit was begun, then the relief here sought must be denied, and this presents the controlling question on this branch of the case, and that is when did the act or wrong occur from which she sustained the injury for which she seeks damages in this case, and when did that injury become apparent, so as to give the plaintiff a right of action, and to then bring a suit?

The general rule, as to when the statute of limitations begins to run, is stated in Young et ux. v. Mackall, 3 Md. Ch. 399, to be as soon as the cause of action accrues, whether it be the case of a trust or not, if it be a fit subject for a suit at law as well as in equity, the statute of limitations begins to run. Green v. Johnson, 3 Gill & J. 390; Weaver v. Leiman, 52 Md. 708; Garrison v. Hill, 81 Md. 551, 32 A. 191.

The general rule, in cases of neglect of duty arising from contract and the breach of a professional duty by a physician, surgeon, or an attorney is held to fall within this rule, and is correctly stated and supported by authority in 25 Cyc. 1116, as follows:

"In cases of negligent performance of a contract or neglect of some duty imposed by contract, the cause of action accrues and the statute begins to run from the time of the breach or neglect, not from the time when consequential damages result or become ascertained; for the cause of action is founded on the breach of duty, not on the consequential damage, and the subsequent accrual or ascertainment of such damage gives no new cause of action. In such cases the form of the action, whether case or assumpsit, is immaterial. * * * A line of demarcation exists, however, between actions based upon the violation of some contractual right or duty and those based on the invasion of some other legal right, or brought to recover consequential damages resulting from defendant's negligence or wrongdoing independent of any contractual relation. In the latter class of cases the right of action accrues and the statute begins to run either when plaintiff's legal rights have been violated or when actual damage results from defendant's act, according to whether the act of defendant is or is not actionable per se."

Mr. Greenleaf, in his work on Evidence, vol. 2, § 433, head, Limitations, says:

"In actions for official or professional negligence, the cause of action is founded on the breach of duty which actually injured the plaintiff, and not on the consequential damage. Thus, in an action against an attorney for neglect of professional duty, it has been held that the statute of limitations begins to run from the time when the breach of duty was committed, and not from the time when the consequential damage accrued."

See cases cited by him.

In Moore v. Juvenal, 92 Pa. 484, the court said:

"Where the declaration, * * * alleges a breach of duty and a special consequential damage, the breach of duty, and not the consequential damage, is the cause of action, and the statute runs from the date of the former, and not from the time the special damage is revealed or becomes definite. * * * 'The loss does not constitute a fresh ground of action, but a mere measure of damages. There is no new misconduct or negligence, * * * and consequently there is no new cause of action."'

In Coady v. Reins, 1 Mont. 424, the court held, in an action for negligence of a physician, that the gist of the action in this instance is the negligence and unskillfulness or breach of duty as laid in the complaint, and not the injury or damage consequent thereon. But the statute in cases of this nature begins to run, regardless of the form of action, whether case or assumpsit, from the time of the negligence or breach of duty.

In Wilcox v. Plummer, 4 Pet. 181, 7 L.Ed. 821, it is distinctly held that the statute begins to run from the time a right of action accrues, and not from the time that the damage is developed or becomes definite. The court said:

"The ground of action here is a contract to act diligently and skillfully; and both the contract and the breach of it admit of a definite

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