Lindquist v. Mullen, 32795

• Decision Date: 09 December 1954
• Docket Number: No. 32795,32795
• Citation: 277 P.2d 724,45 Wn.2d 675
• Parties: Mabel E. LINDQUIST, Appellant, v. Bernard P. MULLEN and Jane Doe Mullen, his wife, Respondents.
• Court: Washington Supreme Court

Page 675

45 Wn.2d 675

277 P.2d 724

Mabel E. LINDQUIST, Appellant, v. Bernard P. MULLEN and Jane Doe Mullen, his wife, Respondents.

No. 32795.

Supreme Court of Washington, En Banc.

Dec. 9, 1954.

Rehearing Denied Jan. 28, 1955.

Carl F. Christophersen, Alfred L. Newbould, Seattle, for appellant.

Eggerman, Rosling & Williams, Allan R. Carpenter, Jr., Seattle, for respondents.

MALLERY, Justice.

The trial court sustained defendant's demurrer. Plaintiff appeals from the judgment of dismissal.

Appellant contends the trial court erred in holding that her action was barred by the three-year statute of limitations. RCW 4.16.080(2), cf. Rem.Rev.Stat. (Sup.) § 159.

The action is predicated upon the negligence of a physician, who will be referred to herein as if he were the sole respondent. On February 1, 1946, he performed operations upon appellant's gall bladder and hernia. He left a surgical sponge in the hernia incision, which prevented it from healing properly for over seven years. Appellant was treated by respondent several times during the next three and one-half years. On October 2, 1949, the hernia incision broke open and drained continuously thereafter until March 31, 1953, at which time about two inches of gauze came out through the opening. Thereupon, respondent again operated upon appellant and removed the sponge. The incision then healed properly.

Appellant's action was commenced on July 9, 1953. This was more than three years after the operations on February 1, 1946. Accordingly, appellant is barred from relying upon the negligent act of leaving the sponge in the hernia incision. It is also more than three years after appellant's last treatment by respondent on October 12, 1949, so that she cannot rely upon the alleged negligent diagnosis and treatment subsequent to the operation.

We have held in malpractice cases that the cause of action accrues at the time of the wrongful act that caused the injury. Cornell v. Edsen, 78 Wash. 662, 139 P. 602, 51 L.R.A.,N.S., 279; Jones v. Gregory, 125 Wash. 46, 215 P. 63; Smith v. Berkey, 134 Wash. 348, 235 P. 793; and McCoy v. Stevens, 182 Wash. 55, 44 P.2d 797, 799. In the McCoy case, supra, this court quoted from Cornell v. Edsen, supra, as follows:

"* * * But, like any other action founded upon a breach of duty imposed either by law or contract, the action arises out of the breach, and the statute of limitations begins to run from the time of the breach and not from the time of its discovery. * * *"

Appellant seeks to avoid the effect of the rule upon the theory that the undiscovered negligence was continuing in nature, thus invoking the rule of Theurer v. Condon, 34 Wash.2d 448, 209 P.2d 311, 315. In that case, the action based upon the negligent installation of an oil burner, which caused a fire seven years later, was held not to be barred. We said '* * * the fire hazard created by appellants' negligence was continuous, and, if the fire which resulted in this action was caused by the filling of the tank when the stove was hot, the bar of the statute of limitations, as to respondents' right of action, did not commence to run as to damages occasioned by the fire until the date of the fire, * * *.' (Italics ours.)

Of course negligence which does not produce harm is not actionable, and a cause of action cannot accrue until injury has been sustained. To be analogous to the instant case the fire in that case must have started with the negligent act, and continued burning until the cause was discovered. In 34 Am.Jur. 126, Limitation of Actions, § 160, it is said:

'* * * where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. * * *'

Appellant contends that the facts of Doran v. City of Seattle, 24 Wash. 182, 64 P. 230, 54 L.R.A. 532, are analogous to those in her case and support her theory of continuing negligence. That action was for trespass and nuisance resulting from the construction of a bulkhead in front of plaintiff's premises, which damaged plaintiff's house. The trespass and damage were continuing, and the court so held. An action in trespass is not predicated upon negligence. A continuing trespass is not tantamount to a continuing negligence. The case, therefore, does not establish the principle that every continuing injury implies a continuing negligence, the loose language in the case to the contrary notwithstanding.

Appellant alleged that the discovery of respondent's negligence was not made until March 31, 1953, when the incision opened and the presence of the gauze was discovered. The injury itself was, of course, known all the while, and the negligent act was not a continuing one. Appellant urges upon us a ruling that the cause of action accrued upon the discovery of the negligence rather than the occurrence of the injury. It is not our prerogative so to do. We are concerned here with the interpretation of a statute. We are satisfied that had the legislature intended the principle of discovery to apply to tort cases based on negligence, it would have specifically said so, as it did with regard to discovery in fraud cases.

Appellant abandoned her other assignments of error, and, accordingly, they will not be discussed herein.

The judgment is affirmed.

SCHWELLENBACH, HILL, HAMLEY, DONWORTH, WEAVER and OLSON, JJ., concur.

FINLEY, Justice (dissenting).

The complaint, tested herein by demurrer, alleges that the defendant doctor performed surgery upon the plaintiff on February 1, 1946; that he did not exercise, in plaintiff's case, the reasonable and ordinary care and diligence ordinarily exercised by physicians and surgeons in the city of Seattle; that he negligently failed to exercise reasonable and ordinary care and diligence in applying the skill and learning of the ordinary physicians and surgeons practicing in Seattle; that he negligently and carelessly left a surgical sponge in plaintiff's body for a period of approximately seven years, during which time plaintiff was frequently ill, nauseated, and feverish; that plaintiff was examined several times by the defendant doctor; that, on October 2, 1949, the incision broke open by itself, and a considerable amount of pus came out; that, on October 3, 1949, and October 12, 1949, plaintiff was again examined by defendant doctor, who put clean dressings on the wound or incision, and stated he thought it would drain out and heal after awhile; that the incision continued to drain until March 31, 1953, when it opened and about two inches of gauze came out; that, during all this time, the defendant doctor neglected and negligently failed to properly examine plaintiff to determine the cause of her condition, and also, negligently failed to properly treat her for her condition; that plaintiff went to the office of the defendant doctor on April 1, 1953, whereupon the latter operated again and removed the surgical sponge which had been left in plaintiff's body since February 1, 1946; that, after the removal of the sponge, the incision healed.

Before proceeding further, perhaps it should be emphasized quite clearly, in behalf of the defendant doctor, that the case is before us on a demurrer to the complaint. The result is that, at this stage in the litigation, the court is considering only the allegations of the plaintiff's complaint, and, under the applicable rule of legal procedure, the demurrer admits the truth of the plaintiff's allegations and all reasonable inferences therefrom. Furthermore, in this connection, perhaps it should be pointed out, in behalf of the defendant doctor, that, if a plaintiff prevails against a demurrer, the truth of the allegations of the complaint must still be proved by a preponderance of the evidence in a trial of the case on its merits before the plaintiff can win the lawsuit.

From my analysis of the allegations of the complaint, apparently neither the patient nor the doctor knew about the sponge which had been left in the body of the patient until after the operation on April 1, 1953. However, the trial court reasoned that the patient's cause of action accrued (a) at the time the sponge was left in her body (February 1, 1946), or (b) no later than October 12, 1949, when the doctor last examined her and failed to discover that the sponge was the cause of all the trouble. Thereupon, the trial court sustained the defendant doctor's demurrer to the complaint on the theory that the applicable statute of limitations had run against the plaintiff's cause of action.

The majority opinion affirms the trial court, citing McCoy v. Stevens, 182 Wash. 55, 44 P.2d 797, attempting to distinguish Theurer v. Condon, 34 Wash.2d 448, 209 P.2d 311, and Doran v. City of Seattle, 24 Wash. 182, 64 P. 230, 54 L.R.A. 532 and concluding with the statement:

'* * * We are concerned here with the interpretation of a statute. We are satisfied that had the legislature intended the principle of discovery to apply to tort cases based on negligence, it would have specifically said so, as it did with regard to discovery in fraud cases.'

It may be possible to agree with the majority opinion that the Theurer and Doran cases, supra, can be distinguished from the case at bar, considering particular factual differences. But that is as far as I can go in agreeing with the majority as to these cases. On the other hand, it seems to me they can safely be cited for the proposition that our statutes of limitation do not specifically provide or indicate just when a cause of action accrues. In fact, it is obvious without citation of cases that the question of when a cause of action accrues is a matter for judicial determination, and, in the final...