162 A. 601 (N.J.L. 1932), 100, Weinstein v. Blanchard

Docket Nº:100
Citation:162 A. 601, 109 N.J.L. 332
Opinion Judge:TRENCHARD, J.
Attorney:For the plaintiff-appellant, Stein, Hannoch & Lasser. For the defendant-respondent, Edwards, Smith & Dawson (Edwin F. Smith and Charles M. James, of counsel).
Case Date:October 17, 1932
Court:Supreme Court of New Jersey

Page 601

162 A. 601 (N.J.L. 1932)

109 N.J.L. 332




No. 100

Court of Errors and Appeals of New Jersey

October 17, 1932

Submitted May 27, 1932.

On appeal from the Supreme Court.

For the plaintiff-appellant, Stein, Hannoch & Lasser.

For the defendant-respondent, Edwards, Smith & Dawson (Edwin F. Smith and Charles M. James, of counsel).


[109 N.J.L. 333] TRENCHARD, J.

This is an appeal by the plaintiff from a judgment entered on a nonsuit at the trial in the Hudson Circuit.

The defendant was a practicing physician and surgeon and was admitted to practice in this state in April, 1891. He operated on the plaintiff on August 10th, 1909, and inserted in the wound two drainage tubes, one of which is alleged to have entered and remained in the body. On October 29th, 1928 (nineteen years after the operation), the plaintiff instituted the present action.

The complaint consists of four counts. The first and third alleged negligence on the part of the defendant in not carefully treating the plaintiff, the leaving of a drainage tube in the wound and permitting it to enter and remain in the body, and claim damages for personal injury, medical expenses, and loss of earnings and business. The second count, charging fraud, was withdrawn at the trial. The fourth count is based upon a claim for damages arising out of injury [109 N.J.L. 334] to the person by reason of the failure of defendant to properly perform the alleged contract to operate upon and treat plaintiff, and claiming like damages.

The defendant, answering the complaint, denied all charges of negligence, malpractice or faulty operation or treatment, and further

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set up that the cause of action was barred by the statute of limitations.

Judge Ackerson, to whom the case was referred for trial, granted defendant's motion for nonsuit on the ground that the cause of action was barred by the statute of limitations, and we think rightly.

The evidence of the plaintiff showed that the plaintiff was born January 27th, 1905; that in August, 1909, he then residing with his parents in Jersey City, became ill; that the defendant was called in to treat and care for him; that the plaintiff was suffering from pneumonia and later pleurisy set in; that the defendant advised an operation; that the operation was performed by defendant; that in the operation an incision was made in the right side of the plaintiff to relieve the pleurisy, and in the incision two tubes were placed for drainage purposes; that the wound was dressed by the defendant with the assistance of the plaintiff's mother, and at intervals the dressings were removed, the wound cleansed, and, at times, the drainage tubes cleansed; that this continued until January, 1910; that sometime toward the end of the treatment one of the drainage tubes was missing; that the plaintiff's mother called attention to the fact and asked if it could have slipped into the wound, and the defendant said that it had not, but if it had, it would dissolve; that the mother's thorough examination of the room and surroundings at that time disclosed conclusively that the tube was not to be found; that the defendant continued the treatment until January, 1910, and then concluded the treatment and discharged the plaintiff, the wound having healed; that the last time the defendant treated the plaintiff was early in January, 1910; that from that time the defendant did not see the plaintiff up to the time of the filing of the summons and complaint, which was on October 29th, [109 N.J.L. 335] 1928. The evidence further showed that on July 8th, 1928, the plaintiff became ill and X-rays disclosed a rubber tube in the lung, which was removed by another surgeon on July 12th, 1928. It was admitted that the boy, having been born January 27th, 1905, became twenty-one years of age on January 27th, 1926.

We have pointed out that there are two classes of action set forth; the first and third counts for tort, and the fourth for breach of contract.

The first question is whether the claim for damages arising out of defendant's negligence in inserting a tube in the plaintiff's wound and permitting it to enter and remain in the body, as charged in the first and third counts, was barred by the statute of limitations in October, 1928, nineteen years later when actual and substantial damage from the personal injury became plainly apparent.

We think that it was.

Our statute of limitations respecting "injuries to the person" is as follows. 3 Comp. Stat. 1910, p. 3164, § 3:

"* * * All actions hereafter accruing for injuries to persons caused by the wrongful act, neglect or default of any person or persons, * * *, shall be commenced and instituted within two years next after the cause of such action shall have accrued, and not after."

That is the pertinent section, since section 4 which provides that where at the time of the accrual of the cause of action the person entitled thereto is an infant, he shall be at liberty to bring the action within two years after he shall become of full age (3 Comp. Stat. 1910, p. 3164, § 4), has no bearing on the present inquiry because it is admitted that the...

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