Bernath v. LeFever
| Decision Date | 11 January 1937 |
| Docket Number | 319 |
| Citation | 189 A. 342,325 Pa. 43 |
| Parties | Bernath, Appellant, v. LeFever |
| Court | Pennsylvania Supreme Court |
Argued November 25, 1936
Appeal, No. 319, Jan. T., 1936, from judgment of C.P. No. 3 Phila. Co., June T., 1932, No. 10851, in case of Tillie Bernath v. C. W. LeFever. Judgment affirmed.
Trespass. Before FINLETTER, P.J.
The opinion of the Supreme Court states the facts.
Jury discharged for failure to agree. Judgment entered for defendant on whole record. Plaintiff appealed.
Error assigned was judgment for defendant.
Judgment affirmed.
Louis Sherr, for appellant.
Charles E. Kenworthey, with him Evans, Bayard & Frick, for appellee.
Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Plaintiff was a victim of malignant destructive myopia. Notwithstanding long-continued treatments, her condition grew progressively worse, and she was threatened, as to her right eye at least, with practical blindness. Defendant, who had been her oculist for several years, advised an operation on the right eye, and, her consent being given, he operated on January 9, 1930. The procedure, according to defendant, consisted in "what we call needling, breaking the capsule which holds the lens, breaking into the capsule and breaking up the lens to some extent so that the water in the anterior chamber is absorbed into the lens, causes the lens to soften and absorb and disappear."
The vision in the right eye was temporarily improved, and a similar operation on the left eye was performed on May 11, 1930. The right eye, however, began to grow worse again; from the testimony it would appear that after a lens has been removed the posterior capsule frequently becomes opaque, making it necessary to needle it also. Accordingly defendant performed this second operation on the right eye on May 9, 1931. Unfortunately an inflammation developed which made necessary still another operation, performed on May 11, 1931. Finally, in July, 1931, the right eye had to be entirely removed.
The present action is in trespass to recover damages for the injuries to the eye and its ultimate loss. Plaintiff does not claim that either the original or any subsequent operation was ill-advised or was negligently performed; on the contrary, she expressly admits that "defendant is an opthalmologist, whose skill, learning and reputation is of the highest," and that the operation of January 9, 1930, was "the only method known to medical science for the improvement of the serious condition which plaintiff had, and the unfortunate results of the operation were not due to any lack of skill or care on the part of defendant." The action is one for false and fraudulent representations, plaintiff producing evidence that defendant had assured her the operation was not a serious one; "there is nothing to it"; it would correct her vision and enable her to dispense with glasses. The jury disagreed; subsequently the court entered judgment for defendant on the whole record, from which judgment plaintiff appeals.
The court below was of opinion that plaintiff's claim was barred by the statute of limitations and this is the only question involved in the appeal. The suit was started on August 8, 1932. Plaintiff concedes the applicable statute to be that of June 24, 1895, P.L. 236, section 2, which provides that "Every suit hereafter brought to recover damages for injury wrongfully done to the person, in cases where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards." The real controversy is as to when, under the facts of the present case, the statute began to run. It is defendant's contention that "the injury was done" at the time of the first operation, January 9, 1930; whereas plaintiff argues that the earliest date which should be adopted is that of the second operation, May 9, 1931.
It is too well-established to require extensive discussion that the statute runs from the time when the injury was done even though the damage may not have been known, or may not in fact have occurred, until afterwards. "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": Moore v. Juvenal, 92 Pa. 484, 490 cited with approval in Lawall v....
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