McCluskey v. Thranow

• Decision Date: 07 June 1966
• Citation: 142 N.W.2d 787,31 Wis.2d 245
• Parties: William G. McCLUSKEY, Respondent, v. John THRANOW et al., Appellants.
• Court: Wisconsin Supreme Court

Page 787

142 N.W.2d 787

31 Wis.2d 245

William G. McCLUSKEY, Respondent, v. John THRANOW et al., Appellants.

Supreme Court of Wisconsin.

June 7, 1966.

Gorectke, Harris & Richman, Milwaukee, for respondent.

HEFFERNAN, Justice.

1. Is the period of limitations tolled until such time that the malpractice is discovered?

Under sec. 330.205, Stats., ¹ the statute of limitations applicable to personal injuries, an action must be brought within three years, except for those instances where a notice of injury was served prior to July 1, 1959. In those cases the six-year limitation of sec. 330.19(5), 1955 Stats., applies. Since no notice of injury was served, the action in the usual course of events was barred three years after the surgery that took place on May 1, 1956. The plaintiff contends, however, that in a malpractice case the injury is not 'sustained' in terms of the statute of limitations until the victim discovers that he was in fact negligently injured. In this case, this discovery first occurred in May of 1962, when he was presented with the objective x-ray finding the hemostat was in his body.

Whatever the abstract merits of the plaintiff's contention may be, this question is not open to new adjudication in Wisconsin. ² The point was clearly decided in Reistad v. Manz (1960), 11 Wis.2d 155, 105 N.W.2d 324. In that case the plaintiff contended that both the notice-of-injury statute and the statute of limitation commence to run only when the injured party discovers the presence of a foreign object left in his body by a physician's negligence. This court therein held that the period of limitations commenced running at the time the malpractice was committed. The court reasoned that, in a proper case, the legislature could have tolled the statute of limitations until such time as the injured party might reasonably have discovered the tort, but the legislature did not see fit to do so. We pointed out that where the action arose as a result of fraud, the legislature had seen fit to toll the running of limitations; and, in such a case, the cause of action was not deemed to have accrued until the discovery of the facts constituting the fraud. ³ It was assumed by the court that, under the rule of statutory construction of expressio unius est exclusio alterius, the legislature, therefore, did not intend to extend the exception to simple negligence or malpractice. A similar rationale was used in Peppas v. Marshall & Ilsley Bank (1957), 2 Wis.2d 144, 148, 86 N.W.2d 27, where we held that the statute of limitations began to run at the time a bank negligently honored a check, even though the plaintiff did not discover the negligence until a much later date.

Similarly, an exception is made in workman's compensation cases, and the statute of limitations does not run against an employee until he 'knew or ought to have known the nature of his disability and its relation to his employment.' Sec. 102.12, Stats.

No similar exception appears in the statute of limitations pertaining to personal injuries. The legislature, having determined that the statute of limitations in fraud cases be tolled until the aggrieved party knew the facts, must be assumed to have rejected such a proposition in regard to negligence.

We, therefore, conclude that, in accordance with the well established law of this state, the period of limitations commenced running on May 1, 1956, and, accordingly, the plaintiff's action for negligence is barred.

2. Has the plaintiff presented any evidentiary facts from which fraud could be established?

As an additional argument, the plaintiff claims that both the surgeon and the hospital are chargeable with fraud and that where fraud exists, under sec. 330.19(7), Stats., supra, the statute of limitations commences to run not from the time the fraud was committed, but from the time of the discovery by the aggrieved party of the facts constituting the fraud. In that event, the cause of action is not deemed to have accrued until the discovery of those facts. The plaintiff's complaint sounds primarily in negligence and not in fraud. Fraud, if an element in this case, must arise out of a false representation. We have held that for a misrepresentation to be fraudulent, it must consist 'first, of a statement of fact which is untrue; second, that it was made with intent to defraud and for the purpose of inducing the other party to act upon it; third, that he did in fact rely on it and was induced thereby to act, to his injury or damage.' International Milling Co. v. Priem (1923), 179 Wis. 622, 624, 192 N.W. 68.

The representations the plaintiff relies upon are that the hospital and Doctor Thranow 'indicated by word and by deed' that the plaintiff was in condition to be discharged from the hospital and that the surgery was complete and proper. It is not alleged that those representations were made with the knowledge that they were false; and while the discharge of the patient under the circumstances present here would be negligence, the necessary elements of fraud are not alleged.

However, the complaint also alleges that the defendants, having knowledge of the May 4, 1956, x-ray, knew of the presence of the hemostat and fraudulently and wrongfully failed to disclose its presence to the plaintiff. If we assume this knowledge upon the part of the surgeon and the hospital and if, as alleged, the plaintiff was nevertheless assured that he was in fit condition to be released from the hospital and was released, the conduct constitutes more than the mere concealment of a cause of action. Suskey v. Davidoff (1958), 2 Wis.2d 503, 87 N.W.2d 306, and Krestich v. Stefanez (1943), 243 Wis. 1, 9 N.W.2d 130, 151 A.L.R. 1022. It is, in fact, an allegation of active fraud and state a cause of action. Though a cause of action is stated, this matter is before the court on summary judgment, and the question presented is an evidentiary one. We have held the allegations of the complaint may not be considered by the court in determining whether there is a triable issue of fact. We have construed sec. 270.635, Stats., to require the presentation of evidentiary facts 'by affidavit or other proof,' and by 'other proof' we mean something besides the allegations in the pleading. ⁴ Both the surgeon and the hospital have filed affidavits of an evidentiary nature based on personal knowledge. The surgeon has deposed that he had not seen the x-ray until 1962 and did not know until then that the hemostat was in the plaintiff's body, and that he then promptly notified the plaintiff. The hospital (by its record custodian) states that the x-ray is presently in the possession of the hospital. These affidavits, although leaving open the question of negligence, on their face dispose of any questions of fraud that are raised.

Counter-affidavits that the plaintiff filed to resist the motion for summary judgment are not of sufficiently probative character that they properly raise a factual issue that must be tried. The plaintiff, McCluskey, deposes 'on information and belief' that the presence of the hemostat was known to both of the defendants although they did not inform him of it. As we stated in McChain v. City of Fond du Lac (1959), 7 Wis.2d 286, 290, 96 N.W.2d 607, and in Townsend v. Milwaukee Ins. Co. (1962), 15 Wis.2d 464, 113 N.W.2d 126, an affidavit upon information and belief is not sufficient to raise a jury question. We pointed out in McChain, supra, that such an affidavit is not an affirmance on knowledge and it is not proof. It does not satisfy the requirements of the statute, sec. 270.635(2), the 'setting forth such evidentiary facts.'

The plaintiff's attorney deposes that on June 10, 1065, he was told by...