Brush Beryllium Company v. Meckley

• Citation: 284 F.2d 797
• Decision Date: 06 December 1960
• Docket Number: No. 14128.,14128.
• Parties: BRUSH BERYLLIUM COMPANY, Appellant, v. Marinthia MECKLEY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

284 F.2d 797 (1960)

BRUSH BERYLLIUM COMPANY, Appellant, v. Marinthia MECKLEY, Appellee.

No. 14128.

United States Court of Appeals Sixth Circuit.

December 6, 1960.

Clinton M. Horn, Cleveland, Ohio (Arter, Hadden, Wykoff & Van Duzer, C. M. Horn, Cleveland, Ohio, and Jones, Day, Cockley & Reavis, Cleveland, Ohio, on the brief), for appellant.

Elmer I. Schwartz, Cleveland, Ohio (Metzenbaum & Schwartz, Elmer I. Schwartz, Robert B. Krupansky, Cleveland, Ohio, on the brief), for appellee.

Before MARTIN, CECIL and O'SULLIVAN, Circuit Judges.

MARTIN, Circuit Judge.

This is an appeal by the defendant from an order of the United States District Court denying defendant's motion for summary judgment, but allowing immediate appeal for the reason that there is substantial ground for a difference of opinion on a controlling question of law, it being considered by the district judge that an immediate appeal from the order might materially advance the ultimate determination of the case.

The crucial issue is whether or not the two-year Ohio statute of limitations Section 2305.10, Rev.Code of Ohio bars an action for damages caused by berylliosis, a disease of slowly insidious development in the respiratory tract.

The complaint of the appellee, filed on April 29, 1959, alleges that between the years 1941 and 1949 the appellant carelessly and negligently expelled into the atmosphere about its plant in Lorain, Ohio, dust, particles, powders and gases in such quantities that the air for many miles around its plant became contaminated, polluted and injurious to those who had to breathe it. The complaint avers that, during such period, the plaintiff was exposed to the noxious, toxic and corrosive particles, dust, powders and gases emanating from the plant of appellant, thereby causing the insidious development of berylliosis in plaintiff; but that the disease did not manifest itself, was not diagnosed as such, nor did it become known to appellee until March of 1958.

Appellee complains further that she suffered extreme pain and that the disease is permanent. Wherefore, she sues for $75,000.

The Brush Beryllium Company filed a motion for summary judgment on the ground that the action, being one for bodily injury, was not brought within two years after the alleged cause of action arose. The motion averred that under the governing law of Ohio the two-year statute of limitation for bodily injury begins to run at the time when the injury was inflicted, even though the fact of injury remains unknown to the person injured.

The motion for summary judgment filed by appellant pointed out that the limitation of action under the law of Ohio was applied to the disease of berylliosis, as is evidenced by Ohio decisions in Irene Wilkins v. Brush Beryllium Company, involving this same defendant. No. 704946, Common Pleas Court of Cuyahoga County (no opinion), affirmed without opinion by the Court of Appeals of Cuyahoga County in Cause No. 24693. The plaintiff there (Irene Wilkins) averred that her motion to certify to the Supreme Court of Ohio was overruled by that court in Cause No. 35976.

The appellant in this case attached to its motion for summary judgment the relevant pleadings, journal entries and briefs filed or entered in the Wilkins case, certified according to Section 1738, Title 28, U.S.C.A. From these documents, it appears that the Wilkins case, in which the action was barred by the statute of limitations of Ohio, is not distinguishable from the case at bar.

But, because of the so-called Ohio "syllabus rule," we are not bound to accept the Wilkins case as controlling law. In State ex rel. Canada v. Phillips, 168 Ohio St. 191, 200, 151 N.E.2d 722, 724 (decided in 1958), the sixth syllabus declares: "Only what is stated in a syllabus or in an opinion per curiam or by the court represents a pronouncement of law by this court" — that is, the Supreme Court of Ohio. This is but a renewed expression of the long-existing Ohio syllabus rule. For pronouncement that the syllabus of a case is the only accurate and authoritative statement of law laid down by the Ohio Supreme Court, see State ex rel. Donahey v. Edmondson, 89 Ohio St. 93, 105 N.E. 269, 52 L.R.A.,N.S., 305; State v. Hauser, 101 Ohio St. 404, 131 N.E. 66; Hart v. Andrews, 103 Ohio St. 218, 132 N.E. 846. See also, Merrick v. Ditzler, 91 Ohio St. 256, 110 N.E. 493; Honhorst v. Honhorst, 95 Ohio St. 408, 116 N.E. 1085.

We shall now consider the published opinions of the Supreme Court of Ohio cited by the appellant.

The headnote in DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, is as follows: "As to a cause of action for malpractice by a physician, the statute of limitations begins to run at the latest upon the termination of the physician-patient relationship whether, within the time limited by the statute, the act constituting malpractice is known or unknown by the one upon whom it was committed."

It should be noted that, in the opinion in the DeLong case, Judge Stewart pointed out that the plaintiff's right of action accrued at the time she could bring an action against the doctor, which was when he negligently left a sponge within the wound caused by the operation.

In the case at bar, the cause of action did not arise for many years after the plaintiff had been long subjected to the noxious gases. She could not have brought an action, because the disease of berylliosis did not develop until after more than two years had expired following the time when she was last subjected to the deleterious fumes.

An earlier Ohio case, Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, decided by an equally divided court, was also a malpractice case in which the surgeon sewed up a sponge within the patient's abdominal cavity; and the issue was whether the limitation statute ran from the time the surgeon negligently left the sponge, or from the termination of his professional relationship with the patient. At page 132 of 67 Ohio St., at page 872 of 65 N.E. of the opinion upholding the bar, the writer of the affirming opinion quoted from Wood on Limitations, as follows: "* * * When the act is not legally injurious until certain consequences occur Italics supplied, the time commences to run from the consequential damage, whether the party injured is ignorant of the circumstances from which the injury results or not."

In Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, it was held that the relationship of surgeon and patient arises out of contract, express or implied; and that the...