Milde v. Leigh
| Decision Date | 22 July 1947 |
| Docket Number | 7036. |
| Citation | 28 N.W.2d 530,75 N.D. 418 |
| Parties | MILDE v. LEIGH. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. One who by reason of his tortious conduct is liable to a married woman for illness or other bodily harm is subject to liability to her husband for the resulting loss of her services, society and companionship, and for any reasonable expense incurred by him in providing medical treatment and care.
2. A personal injury, either intentionally or negligently caused to a married woman, gives rise to two separate and independent causes of action, one in favor of the wife for the damages sustained by her personally, and one in favor of her husband for the loss of his wife's services, society and companionship and for any reasonable expense incurred by him in providing medical treatment and care.
3. The gist of the husband's cause of action is the loss and expense sustained by him; not the injuries sustained by his wife. Such loss and expense sustained by the husband are not merely items of damage; they are essentials of the husband's cause of action itself, which cannot arise until he has sustained such loss.
4. It is the conjunction of damage and wrong that creates a tort, and there is no actionable tort if either damage or wrong is wanting.
5. A cause of action does not accrue until the party owning it is entitled to begin and prosecute an action thereon; it accrues at the moment he has a legal right to sue on it and no earlier.
6. A husband's cause of action for loss of services, society and companionship of his wife, resulting from injuries to her through the wrongful acts or negligence of another, arises at the time he is deprived of such services, society and companionship.
Nilles Oehlert & Nilles, of Fargo, for defendant and appellant.
Sinness & Duffy, of Devils Lake, for plaintiff and respondent.
This is an action brought by the husband to recover for the loss of the services and companionship of his wife and for moneys expended in her care and medical treatment, all of which loss and expenditure it is alleged was caused by the malpractice of the defendant as a physician in the performance of an operation upon the plaintiff's wife.
The sole question presented on the appeal is whether the action is barred by the statute of limitations.
The action was commenced on November 10, 1945. The complaint alleges that the defendant is a practicing physician and surgeon in this state; that the plaintiff is, and at all times hereinafter mentioned was, the husband of Sylvia Milde that on or about March 16, 1943, the said Sylvia Milde, who was then pregnant with child, consulted the defendant and that the plaintiff engaged the services of the defendant to act as physician in the delivery of the child; that it was found necessary to make such delivery by Caesarean operation which operation was performed by the defendant; that the plaintiff and his said wife, Sylvia Milde, having been advised that she could not give birth to another child except through Caesarean operation and that a second or successive operation of this nature would be detrimental and dangerous to her health, consulted with the defendant with relation to having a sterilization operation performed in connection with the Caesarean operation; that the defendant advised that such operation be performed and that he agreed to perform such sterilization operation and that the plaintiff paid the defendant $200 for the performance of such operation; that the defendant represented to the plaintiff and to his said wife that he had successfully and properly performed such sterilization operation when in truth and in fact he had so negligently and carelessly performed such operation that the said Sylvia Milde was not rendered sterile; that the said plaintiff and his said wife, relying upon the representation of the defendant and believing that he had properly performed such operation, had normal intercourse and as a result thereof the said Sylvia Milde again became pregnant and on March 7, 1945, gave birth to another child; that it was again necessary to have a Caesarean operation performed upon said Sylvia Milde to make delivery of such child and that she suffered such loss of blood therefrom as to require blood transfusions and to gravely endanger her life; that the second Caesarean operation and the birth of the second child and the fear and shock suffered by the said Sylvia Milde upon discovering that the sterilization operation had been a failure and that she was pregnant and that she would again be compelled to have a Caesarean operation, permanently impaired her health and rendered her highly nervous and mentally and physically unstable; that as a result thereof, the plaintiff has been compelled to expend more than $2,000 for medical and hospital care, nursing services, and other assistance, care, and attention for his wife; that as a consequence the plaintiff has been and will be deprived of the services and companionship of his wife for a long time, and that as a consequence of the want of skill and attention on the part of the defendant and his failure to perform the sterilization operation in a proper and skillful manner and as agreed upon, the plaintiff has sustained damages in the amount of $10,000.
The defendant interposed an answer wherein it is admitted that the defendant was engaged to perform the medical and surgical services referred to in the complaint; but it is denied that the same were performed negligently or carelessly. As a further defense, the defendant alleges that the services of the defendant as a physician and surgeon in connection with the performance of the sterilization operation were fully completed and terminated prior to April 1, 1943; that consequently the alleged negligent treatment occurred more than two years prior to the commencement of the action and therefore said purported cause of action accrued more than two years prior to the commencement of the action and is barred by the statute of limitations of the State of North Dakota.
The plaintiff demurred to the paragraph in the answer alleging that the plaintiff's cause of action is barred by the statute of limitations on the ground that the facts alleged in the paragraph do not constitute a defense. The trial court sustained the demurrer and defendant has appealed.
As said, the sole question presented for determination on this appeal is whether plaintiff's cause of action is barred by the statute of limitations. N.D.R.C.1943, Sec. 28-0118, provides:
'The following actions must be commenced within two years after the cause of action has accrued:
'1. An action for libel, slander, assault, battery, or false imprisonment;
'2. An action upon a statute for a forfeiture or penalty to the state;
The defendant contends that this is an action for malpractice; that the cause of action accrued at the time the alleged negligent operation was performed on or about March 16, 1943, and that inasmuch as defendant's services as a physician and surgeon terminated prior to April 1, 1943, and this action was not brought until November 10, 1945, it is barred by the above-quoted Subdivision 3 of said Sec. 28-0118, which requires that an action for the recovery of damages resulting from malpractice be commenced within two years after the cause of action has accrued.
It is said that our Code of Civil Procedure was borrowed from New York, and that the courts of New York have held that a cause of action for malpractice accrues at the time of the cessation of the treatment and that that construction should be adopted in this state.
While we do not deem his contention material to the disposition of the case, we deem it desirable to show the facts with respect to the source of the provisions of the statute of limitations of this state.
It is true the Legislature of the Territory of Dakota in 1868 adopted the Code of Civil Procedure of New York, see Preface, R.C.N.D.1895, p. v; Preface, N.D.R.C.1943, p. 6. But the Code of Civil Procedure of New York adopted by the Territorial Legislature of 1868 contained no provision specifically referring to an action for malpractice or an action for the recovery of damages resulting from malpractice. The section of the Code of Civil Procedure of New York as adopted by the Territorial Legislature in 1868 read as follows: Laws of Dakota 1868, Code Civ.Proc. pt. 2, tit. 2, Ch. 3, Sec. 46.
This statute remained in force in this jurisdiction as enacted in 1868 without change until 1893 when the Legislature amended the statute by adding another subdivision and thus making the statute read as follows: Laws of North Dakota 1893, Ch. 87.
Specific reference to an action for malpractice was first made in the statute of limitations of New York in a legislative enactment adopted in 1900. As amended by the legislature in 1900, the New York statute read as follows: Code Civ.Proc. § 384, Laws of New York 1900, Ch. 117; Civil Practice Act, § 50; 1946 Clevenger's Practice Manual of New York, 1-54. See, also, ...
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