Lotten v. O'Brien

Decision Date02 May 1911
PartiesLOTTEN v. O'BRIEN.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Ole Lotten against Thomas O'Brien. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Spooner & Ellis and Nash & Nash, for appellant.

Hougen & Brady, for respondent.

TIMLIN, J.

The complaint charged that on August 24, 1908, the plaintiff employed defendant as a physician and surgeon to set and heal the broken arm of plaintiff, and defendant on that day pretended to set said broken arm and continued thereafter to treat and car for the arm. Defendant so negligently, carelessly, and unskillfully conducted himself in setting and attempting to treat said broken arm that the arm was not set at all. The fractured portions of the bone were not brought together and did not unite, etc., to plaintiff's damage.

The action was commenced on November 13, 1909. The answer averred the one-year statute of limitations in bar of the action. Subdivision 5, § 4222, as amended by chapter 307, Laws of 1899. The jury, by a special verdict, found for the plaintiff, and he had judgment for $1,265 damages. The injury to his arm was a simple fracture of the radius of the forearm, at about the junction of the lower and middle third. The defendant treated the plaintiff on August 24, 25, 27 and 29, September 2, 7, 16, and 26, 1908, but not after the latter date. On October 3, 1908, the plaintiff consulted Dr. Knauf, who took an X-ray photograph of the broken arm, and, on or about October 13, 1908, the plaintiff exhibited this photograph to the defendant and had some conversation concerning the arm.

From this we think it appears that the acts of negligence complained of took place not later than September 26, 1908. The negligent resetting took place prior to that time. This is apparently the proximate cause of plaintiff's injury. If there was negligence in treating the arm after negligently setting the bones, this latter negligence occurred not later than September 26th, when the treatments by defendant ceased. The mere fact that there was no discharge of the defendant on that date would not change this result.

[1] The statute of limitations began to run when the cause of action accrued and this accrued when the negligent acts were committed, without reference to the time of discharge. The real negligent act which caused the injury to plaintiff was the improper setting of the bones in his arm. The negligent omission to discover this occurred at such dates and times as the defendant undertook to...

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29 cases
  • Peterson v. Roloff
    • United States
    • Wisconsin Supreme Court
    • January 30, 1973
    ...for damages. The older cases speak of the date of the negligent act as the time when the cause of action accrues. Lotten v. O'Brien (1911), 146 Wis. 258, 131 N.W. 361; Reistad v. Manz, supra. However, in Olson v. St. Croix Valley Memorial Hospital (1972), 55 Wis.2d 628, 201 N.W.2d 63, we po......
  • Vaughn v. Langmack
    • United States
    • Oregon Supreme Court
    • March 11, 1964
    ...424 (reduction of fracture); Giambozi v. Peters, 127 Conn. 380, 384-385, 16 A.2d 833 (transfusion of infected blood); Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361 (reduction of fracture); Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529 (failure to remove forceps from body); Bernath v. ......
  • Wyler v. Tripi
    • United States
    • Ohio Supreme Court
    • February 24, 1971
    ...A. 678; Hawks v. DeHart (1966), 206 Va. 810, 146 S.E.2d 187; Lindquist v. Mullen (1954), 45 Wash.2d 675, 277 P.2d 724; Lotten v. O'Brien (1911), 146 Wis. 258, 131 N.W. 361.2 Davis v. Bonebrake (1957), 135 Colo. 506, 313 P.2d 982 (compare, Rosane P.2d 372); Layton v. Allen (Del.1968), P. 2d ......
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals Court of Appeals
    • April 17, 1969
    ...v. Allen, 103 Vt. 373, 154 A. 678; Hawks v. DeHart, 206 Va. 810; Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724; Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361.5 'Prior to September 1, 1900, actions against physicians and surgeons based upon their negligence which resulted in bodily harm ......
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