Dowell v. Mossberg

Decision Date21 February 1961
Citation226 Or. 173,359 P.2d 541
PartiesBeulah M. DOWELL, Respondent, v. Paul V. MOSSBERG, Appellant.
CourtOregon Supreme Court

Howard K. Beebe, Portland, argued the cause for appellant. With him on the briefs were Maguire, Shields, Morrison, Bailey & Kester, Portland.

Don S. Willner, Portland, argued the cause for respondent. On the brief were Lenon & Willner, Portland.


GOODWIN, Justice.

Following the decision in this case, Or., 355 P.2d 624, we granted rehearing. As will be seen from the former opinion, the principal controversy was whether an action for malpractice against a physician must be commenced within the period of limitations for personal wrongs not arising out of contract, or within the longer period permitted for actions upon contracts.

We held, in accordance with the great weight of authority, that an action for personal injuries resulting from the failure of a physician to exercise due care in treating his patient must be commenced within the period of limitations for torts. We adhere to that rule.

We also held that the failure of the defendant to interpose the defense of limitations by demurrer constituted a waiver of the defense. As a general proposition, the rule is sound. Spaur v. McBee, 19 Or. 76, 23 P. 818. However, in Dixon v. Schoonover, Or. 359 P.2d 115, we later noted that the strict rule of Spaur v. McBee is not inflexible. There can be cases in which the rule of waiver by failure to demur would have no proper application. Dixon v. Schoonover was such a case, and the case at bar is another.

The plaintiff, in an evident attempt to avoid the two-year statute of limitations, stated a cause of action based upon an express contract allegedly entered into with the defendant. The allegations of the complaint make it clear that plaintiff carefully avoided stating a cause of action based on the breach of the duty resting on every physician to use due care.

As noted in the original opinion, the complaint alleged that the plaintiff had performed her part of the contract and that the defendant had breached his. In order to induce a favorable ruling on the plaintiff's demurrer to an amended answer in which the defendant tendered the defense of limitations, the plaintiff elected in open court to prove the contract pleaded in the complaint. Under the practice followed in Multnomah County, the presiding judge rules upon motions and demurrers. An election made during the pleading stage becomes a part of the records and is as binding as an election made upon trial.

The plaintiff's election to prove the contract alleged in the complaint was also an admission in open court that the...

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34 cases
  • Vaughn v. Langmack
    • United States
    • Oregon Supreme Court
    • 11 March 1964
    ...130 P.2d 944, 144 A.L.R. 205; Shives v. Chamberlain, 168 Or. 676, 126 P.2d 28. In Dowell v. Mossberg, 226 Or. 173, 179, 355 P.2d 624, 627, 359 P.2d 541, we said: 'It is equally well settled, and the plaintiff conceded, that the time begins to run with the termination of treatment rather tha......
  • Tomlinson v. Metro. Pediatrics, LLC
    • United States
    • Oregon Court of Appeals
    • 30 December 2015 stating a medical malpractice claim. See Dowell v. Mossberg, 226 Or. 173, 181–83, 355 P.2d 624, rev'd on reh'g on other grounds, , 359 P.2d 541 (1961) ; David W. Louisell & Harold Williams, 1 Medical Malpractice § 8.03[1] at 8–17 (2009) (summarizing decisions from other states). As this ......
  • Tomlinson v. Metro. Pediatrics, LLC
    • United States
    • Oregon Supreme Court
    • 8 February 2018 See Creasey v. Hogan , 292 Or. 154, 163, 637 P.2d 114 (1981) (stating a physician's standard of care); Dowell v. Mossberg , 226 Or. 173, 190, 359 P.2d 541 (1961) (explaining that an "unspoken contractual relationship between a physician and patient is a matter of inducement in a ......
  • Redfield v. Mead, Johnson & Co.
    • United States
    • Oregon Supreme Court
    • 19 July 1973
    ...favorable statute of limitations by restricting them to a single theory of recovery. In Dowell v. Mossberg, 226 Or. 173, 355 P.2d 624, 359 P.2d 541 (1961), a medical malpractice case, we held that the real basis of the action is the physician's failure to use due care, and that the 'unspoke......
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