Dowell v. Mossberg

CourtSupreme Court of Oregon
Citation355 P.2d 624,226 Or. 173
PartiesBeulah M. DOWELL, Respondent, v. Paul V. MOSSBERG, Appellant.
Decision Date21 September 1960

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. With him on the brief were Lenon & Willner, Portland.


GOODWIN, Justice.

Paul Mossberg, who is a licensed chiropractor, appeals from a judgment for Beulah Dowell, the plaintiff, following a jury trial in a malpractice action.

In April, 1954, the plaintiff heard a radio commercial inviting the public to The Basic Health Center, operated by the defendant. The establishment employed other chiropractors, numerous 'interns', 'trainees' and 'nurses' as well as other functionaries incident to the operation of a clinic. The evidence revealed that the defendant was in charge of the establishment and that all the personnel so employed were under his supervision and control. He testified that his time was largely taken up by diagnosis and supervision, although he gave some treatments. The plaintiff repaired in due course to The Basic Health Center, where her history was taken by a person described as a trainee. She was then examined by the defendant.

The examination, according to the defendant's testimony, revealed a woman 56 years old who was suffering a variety of painful and debilitating symptoms, only a few of which are relevant here. The symptoms which the plaintiff claims to have described to the defendant have to do with the plaintiff's cause of action for damages arising out of an alleged failure to diagnose a serious case of diabetes mellitus, which failure the plaintiff claims caused a long delay in receiving proper treatment, with resultment permanent injury.

The plaintiff was treated by the defendant between April 8 and June 4, 1954, during which time the diabetes was undetected. She refused to return to the defendant for a July appointment. She received no further treatment until August 1956, when she saw a medical doctor who immediately instituted insulin treatments. Eventually the disease was brought under control. There was evidence from which the jury could have found that the delay in treating the disease was caused by the failure of the defendant to diagnose the condition. There was also evidence that the delay in treatment permitted the course of the disease to advance to the extent that the plaintiff suffered permanent damage to her eyesight as well as other permanent impairment of her health.

With this brief outline of the facts, and before considering the interesting questions of evidence presented by this appeal, we will consider the principal assignments of error which relate to the defendant's contention that the plaintiff was barred by the statute of limitations.

The plaintiff filed the original complaint in this action on December 28, 1956, which was shortly after she discovered the true nature of her illness, but more than two years after the defendant had stopped treating her. Probably with this situation in mind, her counsel drafted the complaint in the form of an action upon a contract. The complaint alleged the usual elements of a contract and damages for the breach thereof. A general denial was filed January 11, 1957, and the case took its turn on the trial docket. On the eve of trial, an amended answer was filed, over the objection of the plaintiff, alleging the statute of limitations as an affirmative defense.

ORS 12.110(1) applies the two-year period of limitations to actions for injuries to the person 'not arising on contract.' The plaintiff demurred to the amended answer on two grounds: first, that the defense of the statute of limitations had been waived by the defendant's failure to interpose the defense by way of a demurrer; and second, that the defense was not available in any event because the action was upon a contract 'express or implied.' Contract actions may be commenced within six years. ORS 12.070(1).

Following the practice in Multnomah County, the presiding judge ruled on the demurrer in this case sustaining it, and the cause came on for trial before another judge to whom it had been assigned.

At each appropriate stage in the proceedings the defendant attempted to renew his defense of the statute of limitations, and each time the defense was rejected. All of the rulings which rejected the tendered defense are assigned as error.

Even though the complaint attempted to state a cause of action in contract, the defendant should have raised the defense of the statute of limitations by demurrer, because the facts which were alleged in the complaint described negligence, and the mere fact that the complaint attempted to plead a contract did not change the substance of the cause of action. Goodman v. Fernald, 154 Or. 654, 61 P.2d 1253; Schwedler v. First State Bank of Gresham, 92 Or. 33, 179 P. 671; Dalton v. Kelsey, 58 Or. 244, 114 P. 464.

Under ORS 16.260(7) one ground of demurrer is the showing by the complaint that the action has not been commenced within the time limited by statute. ORS 16.270 requires the party interposing the demurrer to specify the grounds thereof. ORS 16.330 provides that if no objection is taken, either by demurrer or by answer, the objection is deemed waived. An unbroken line of Oregon cases sustains the plaintiff's proposition that when the lapse of time appears in the complaint, as it did in the case at bar, the failure to demur upon that ground constitutes a waiver of the defense of limitations. See, for example, Ricker v. Ricker, 201 Or. 416, 421, 270 P.2d 150; Eastman v. Crary, 131 Or. 694, 699, 284 P. 280; Spaur v. McBee, 19 Or. 76, 23 P. 818.

It is equally well settled, and the plaintiff conceded, that the time begins to run with the termination of treatment rather than with the discovery of the malpractice unless fraud or concealment is involved. Hotelling v. Walther, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 205, 227 (also see 174 Or. 381, 148 P.2d 933); 41 Am.Jur. 233, Physicians and Surgeons § 123.

We are unable to tell from the record whether the trial court sustained the demurrer to the amended answer because of the waiver of the defense by failure to demur or because of the plaintiff's second contention, that the action was upon a contract.

While we hold that the demurrer was properly sustained because the defense of limitations had been waived, it is appropriate to dispose of the second contention made by the plaintiff, that the action was truly one in contract. Plaintiff alleged, among other things: 1


'That in April, 1954, in Portland, Multnomah County Oregon, plaintiff and defendant entered a contract whereby plaintiff agreed to pay a valuable consideration and defendant agreed to diagnose plaintiff's ailments and give her a course of treatment for the cure of her ailments, and in said diagnoses and treatment to exercise reasonable care and skill.


'That commencing in April, 1954, pursuant to the terms of the contract hereinbefore alleged, defendant diagnosed plaintiff's ailments and gave plaintiff a course of 24 chiropractic treatments ending in June, 1954.


'That plaintiff paid to defendant the sum of Five Hundred ($500.00) Dollars for said diagnosis and treatment, and has performed all of the conditions of the contract on her part to be performed. * * *.'

The courts which have decided the question whether the action is in tort (trespass upon the case for negligence) or in contract have not been unanimous. See cases noted in 151 A.L.R. 1027. The majority of the courts, however, have analyzed the relationship between the doctor and patient as one in which the contract of employment is a matter of inducement, and the failure to exercise due care in the practice of the healing arts brings the substance of the action within the law relating to injuries to the person. Notes, 151 A.L.R. 1027, supra; 74 A.L.R. 1256.

The accuracy of this analysis of the relationship is nowhere more clearly demonstrated than by the rule that the burden of proving a breach of duty universally requires the plaintiff to produce evidence that the doctor in each case did not exercise that degree of skill and care which an ordinarily skillful practitioner of his particular branch of the healing arts would have exercised in the same community in similar circumstances. 70 C.J.S. Physicians and Surgeons §§ 41-45, pp. 946, 954.

Mr. Justice Bean, writing for this court in an action involving the lawyer-client relationship, said:

'* * * Where one adopts the legal profession, and assumes to exercise its duties in behalf of another for hire, the law imposes a duty to exercise reasonable care and skill, and, if an injury results to his client from want thereof, he is liable to respond in damages to the extent of the injury sustained. This duty and liability arises from the relation of the parties under the contract, rather than from the contract itself, and at common law the injured party could sue, either in assumpsit, for a breach of the implied promise, or in case, for the neglect of duty. 3 Enc. Pl. & Prac. 107. In the latter instance it is necessary to aver the contract of employment, showing the relation of attorney and client, as a matter of inducement, because without such contract there could be no duty to the plaintiff, and hence no liability. As stated by Mr. Justice McDonald, in Emigh v. Pittsburg, etc. R. R. Co., 4 Biss. 114, Fed.Cas.No. 4,449: 'When there is a contract, either express or implied, from which a common-law duty results, an action on the case lies for a breach of that duty, in which case the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. Thus, if a lawyer or physician...

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  • Vaughn v. Langmack
    • United States
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    • March 11, 1964
    ...Hotelling v. Walther, 169 Or. 559, 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 ......
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