Conway v. Ogier

• Decision Date: 25 April 1961
• Citation: 115 Ohio App. 251,184 N.E.2d 681
• Parties: , 20 O.O.2d 324 CONWAY, Appellee, v. OGIER er al., Appellants.
• Court: Ohio Court of Appeals

Page 251

115 Ohio App. 251

184 N.E.2d 681, 20 O.O.2d 324

CONWAY, Appellee, v. OGIER er al., Appellants.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 25, 1961.

Rehearing Denied June 6, 1961.

Syllabus by the Court

1. The Ohio 'borrowing' statute, Section 2305.20, Revised Code, adopts a foreign state's limitation period only where that period is less than the Ohio period.

2. The right to assert common-law recoupment, or to assert a cross-demand under Section 2309.19, Revised Code, is 'procedural' and governed by Ohio law and is not affected by Section 2305.20, Revised Code.

3. A cause of action for loss of consortium resulting from claimed malpractice in the performance of professional services accrues in the state where the malpractice occurred, and affirmative relief is barred by that state's statute of limitations where such limitations are applicable by virtue of Section 2305.20, Revised Code.

4. Under Section 2317.44, Revised Code, judicial notice does not extend to foreign case law, and in the absence of proper proof, the statutes of a foreignstate are to be interpreted as are similar Ohio statutes.

5. Since the New York statutes do not explicitly prescribe a limitation on actions for loss of consortium arising from malpractice, and no proof was offered as to the New York interpretations, it must be presumed that, on the authority of Corpman v. Boyer (1960), 171 Ohio St. 233, 169 N.E.2d 14, the New York malpractice statute does not apply to loss of consortium arising from malpractice.

Coughlin, Ogier & Lloyd, Columbus, for appellants.

Maugan, Vacca & Braun, Columbus, for appellee.

DUFFEY, Presiding Judge.

Plaintiff, appellee herein, filed an action to recover for medical services against appellants, husband and wife. Appellants counterclaimed--the wife for malpractice, the husband for loss of consortium. Each counterclaim prays for affirmative relief.

On the face of the pleading, the services were rendered in September of 1956, in the city of New York, consisting of an operation on the defendant wife. The defendant husband allegedly remained at all times in the state of Ohio. The petition was filed in February 1959 and the counterclaims in June 1959. The trial court sustained motions to dismiss the counterclaims on the ground that the statute of limitations had run. The Ohio statute of limitations for malpractice is one year. Section 2305.11, Revised Code. The New York period is two years. New York Civil Practice Act, § 50. Defendants contend that they are entitled to affirmative relief on both counterclaims. Reliance is placed on Section 2305.15, Revised Code, which tolls the running of the period when the defendant is out of the state.

The place of injury for the malpractice claim is clearly New York, and the cause of action arose there. Section 2305.15, Revised Code, applies only to causes of action which accrue in Ohio. See Wentz v. Richardson (1956), 165 Ohio St. 558, 138 N.E.2d 675.

The New York Civil Practice Act, § 61, provides that the running of limitations bars the claim both as an affirmative cause of action and as a 'defense.' Plaintiff contends that, therefore, no counterclaim whatsoever can be filed. The question of the defendants' right to use the alleged malpractice as a counterclaim, based on a theory of cross-demands or recoupment without affirmative relief, is not directly presented on this appeal. Since an amendment would seem probable, we think several observations might be made.

A claim of malpractice is, of course, an allegation of nonperformance, or at least defective performance of services by the doctor. To that extent, it is a true defense and not affected by limitations. A claim of malpractice asserted as here, in an action for the value of the services from which the malpractice arises, is a cross-demand within Section 2309.19, Revised Code. It arises from the same transaction and subject of action, and came into existence simultaneously with the plaintiff's claim for services. Cross-demands are not barred by limitations but, as the statute provides, 'must be deemed compensated so far as they equal each other.' In re Estate of Butler (1940), 137 Ohio St. 96, 28 N.E.2d 186; Shriner v. Price, Ex'r (1944), 74 Ohio App. 373, 59 N.E.2d 152; Cohn v. Krauss (1943), Ohio App., 67 N.E.2d 62. See, also, 1 A.L.R. (2d), 661, Section 23. It also constitutes a proper claim for common-law recoupment and, for that additional reason, is not barred. See 1 A.L.R.2d § 14, p. 666 and 686, § 23.

From a pleading viewpoint, both cross-demands and recoupment are properly denominated as a counterclaim. Section 2309.16, Revised Code, includes and is broader than setoff, recoupment and cross-petition. Nasco v. Ferguson (1952), Ohio App., 121 N.E.2d 209; Johnson v. Sargent (1958), 109 Ohio App. 16, 163 N.E.2d 401. Under New York law, apparently both cross-demands and recoupment are barred. As an original question, it would seem best that on a foreign claim the forum court should treat the claim exactly as the laws of the sister state would treat it. Arguably, we should have uniformity of result regardless of the accident of forum. See R. J. Nordstrom, 'Ohio's Borrowing Statute of Limitations' (1955), 16 Ohio State Law Journal, 183. However, it has long been established for better or worse that limitations are 'procedural' and controlled by the law of the forum. The right to use a claim as a cross-demand or recoupment is in its nature the same as the right to obtain affirmative relief. Accordingly, it also should be classified as procedural. Our 'borrowing' statute modifies the basic doctrine by applying the foreign limitation period only when it is a lesser period than that provided on Ohio. Section 2305.20, Revised Code. It would thus appear that the New York limitation statutes are not applicable to the defendant's right to assert the malpractice claim on a theory of cross-demand or recoupment without affirmative relief.

The defendant husband's action is for loss of consortium. The plaintiff's action against the husband is either on a theory of contract or of necessities, the petition being somewhat vague as to which theory is relied upon. In Ohio, a consortium action has a four-year period of limitations, even though the loss is the result of malpractice. Section 2305.09, Revised Code. Corpman v. Boyer (1960), 171 Ohio St. 233, 169 N.E.2d 14. Appellee's position is apparently that this counterclaim is also al New York cause of action, that in New York the malpractice limitation of two years applies and that, therefore, under Ohio's 'borrowing' statute the claim is barred both as an affirmative one and as a defense.

For the reasons suggested above, we believe the counterclaim could qualify as a cross-demand or as a recoupment under any view. However, the defendant husband contends that since he never left Ohio, and Ohio is the matrimonial domicile, the cause of action is an Ohio one, and that he is entitled to affirmative relief.

We know of no reported case on the problem of choice of law presented by the circumstances of this claim for loss of consortium. It is apparent that the 'touchstone' of place of the wrong, in which the Restatement places its confidence, is of little assistance here. Restatement of Conflict of Laws (1934), Section 377. Cf. Schmidt, a Minor v. Driscoll Hotel, Inc. (1957), 249 Minn. 376, 82 N.W.2d 365, where the court refused to apply the Restatement rule in a case under a Dram Shop Act. Considerable difficulty has been experienced in choice of law for wrongs to intangible relationships, such as interference with contract, multi-state defamation, and alienation of affection cases. The alienation cases are, of course, analogous to loss of consortium. Like criminal conversation, alienation is one facet of loss of consortium rights.

In Gordon v. Parker (D.C.Mass., 1949), 83 F.Supp. 40, involving slienation of affections, the court rejected the matrimonial domicile in favor of the state where the conduct occurred. It was pointed out that control of the conduct which caused the injury was of primary importance. The decision was followed in Albert v. McGrath (1960), 107 U.S.App.D.C. 336, 278 F.2d 16, reversing the district court, 165 F.Supp. 461. Cf. Orr v. Sasseman (C.C.A.5, 1956), 239 F.2d 182.

It is apparent that a choice of law here involves competing state interests. In a...