Ogg v. Robb

• Decision Date: 06 April 1917
• Docket Number: No. 31320.,31320.
• Citation: 181 Iowa 145,162 N.W. 217
• Parties: OGG v. ROBB.
• Court: Iowa Supreme Court

181 Iowa 145

162 N.W. 217

OGG

v.ROBB.

No. 31320.

Supreme Court of Iowa.

April 6, 1917.

Appeal from District Court, Jasper County; K. E. Wilcockson, Judge.

As appellant states his claim, this is an action at law brought by plaintiff to recover damage for injuries caused by defendant's negligence and malpractice as a physician and surgeon and by his fraud and fraudulent deception therein in connection with electric rays, radioexposures and use of an X-ray machine and medical services therewith. Plaintiff sued for $50,000. Defendant interposed a demurrer to the petition, which was sustained, and, plaintiff electing to stand upon his petition, judgment was rendered against him for costs, and he appeals. Affirmed.O. P. Myers and W. G. Clements, both of Newton, for appellant.

PRESTON, J.

It is alleged that plaintiff was born September 2, 1884, and became of age in 1905. He was injured about June, 1901; he was treated and burned by defendant as hereinafter stated in July of that year; some time in 1908 defendant moved to Wisconsin and became a nonresident of Iowa; some time in the year 1912 the tissues where he had been burned broke down and became a malignant cancerous growth, necessitating the amputation of his arm, and it is alleged that this condition was first discovered in 1912. This action was brought September 20, 1915.

Complaint is made by appellant that the court erred in sustaining defendant's motion to strike parts of the petition wherein it is alleged that defendant used the X-ray machine without the knowledge of plaintiff's parents. The parents are not suing in this action, and, in the view we take of the case, the ruling on the motion to strike is not material and would not have made a case on demurrer or prevented the running of the statute of limitations had the motion not been sustained. The real question in the case, as conceded by appellant, is whether his claim is barred by the statute of limitations. We have not been favored with an argument for appellee. We prefer argument because in its absence the court is compelled to make an independent investigation.

It is alleged in the petition, substantially: That in 1901, when plaintiff was under 17 years of age, he accidentally broke his right wrist. It had been set by other doctors, but about June, 1901, defendant used his X-ray machine in one application upon plaintiff's wrist to determine whether the bones were properly set, and found that they were. At this time and for some years prior thereto defendant had been a regular practicing physician and surgeon. That thereafter and during the month of July, 1901, upon the request of defendant, and for the benefit of defendant, he called plaintiff into his office, without the knowledge or consent of plaintiff's parents, and experimented upon plaintiff with defendant's X-ray machine to secure pictures of plaintiff's hand and wrist. That he continued for ten days in said experiments, and used the X-ray machine on plaintiff's hand and wrist many times and made long and close exposures. That as a result thereof the skin on his hand and wrist became discolored. Defendant then informed plaintiff and his parents that the use of the X-ray machine caused such discoloration, and defendant then falsely and fraudulently informed plaintiff and his parents that this discoloration was of no particular consequence and would be temporary in its effects, and defendant fraudulently concealed from plaintiff and his parents the true effect of radioexposure produced by the X-ray machine. That defendant then treated said discoloration for a time and it apparently disappeared, leaving a scar, but with usual use of the hand. That plaintiff and his parents fully relied upon the statement and advice of defendant as to the temporary effect of said X-rays, and nothing further was done in regard thereto until 1912. That the use of said machine by defendant produced a cancerous condition which was latent and dormant until 1912, and plaintiff had no knowledge of said condition until then. That at said time the tissues of the right hand where the X-rays had been applied broke down and became an epithelioma or malignant cancerous growth, causing plaintiff great pain, suffering, and mental anguish, greatly injuring his general health and necessitating the amputation of his right forearm in order to save his life. That at great expense during and since 1912 he has advised with the most skillful physicians and surgeons and experts, and made every effort to overcome the effects of said X-rays upon him as used by defendant, but that the outcome is not fully determined. That the loss of his right arm has greatly incapacitated him from earning his livelihood. That plaintiff was guilty of no contributory negligence. That in using said machine defendant was negligent, and thereby caused said injury. That defendant by such use well knew that he had produced effects and conditions that would finally develop into a malignant cancerous growth, which he knowingly and fraudulently concealed from plaintiff. That said action and representations of defendant were a fraud upon plaintiff, which fraud was not known to plaintiff until 1912. That said fraud consisted in inducing plaintiff, then a minor, to submit his right hand to the X-rays and X-ray machine, plaintiff being wholly ignorant of the effects and use thereof; and, further, in representing to plaintiff and his parents that the discoloration produced by such use was only temporary, and, further, by knowingly and fraudulently concealing from plaintiff and his parents the real nature and effect of the negligent use of said machine, all which fraud was not known to plaintiff until the year 1912.

The demurrer was in this form: That the petition shows upon its face that the plaintiff's alleged cause of action is barred by the statute of limitations, in that: (a) The said cause of action did not accrue within three years prior to one year after the plaintiff attained his majority, and no sufficient facts are stated to postpone the running of the statute of limitations. (b) That the gist of plaintiff's action is negligence, and his cause of action, if any, accrued at the time the injury was done, whether the extent was then known or not. (c) That under the law, the right to maintain an action for negligence is distinguished from the measure of damages resulting from such negligence, and although the entire damages resulting from the alleged negligence of the defendant was not known to the plaintiff until his time of recovery was barred, yet the time in which the action may be brought was not prolonged thereby. (d) That said statute does not run from the time of the consequent injury to the plaintiff. (e) That plaintiff's cause of action is not founded on fraud, and the allegations of the petition do not defeat the bar of the statute.

Appellant has not argued the question as to whether, if a cause of action accrued at the time of the original injury, suit could have been brought by plaintiff by his guardian or next friend, or whether he would have time, after attaining his majority, to bring suit, nor is the question of the effect of defendant's removal from the state in 1908 argued; doubtless on the theory that if a cause of action accrued to plaintiff in 1901, it would be barred in any event. As bearing on the first proposition, see Murphy v. Railway, 80 Iowa, 26, 45 N. W. 392;Roelefsen v. Pella, 121 Iowa, 153, 96 N. W. 738.

Appellant says in argument that there is only one main controlling question to present to this court in this cause; that the demurrer raises only one question, and that is the question of the statute of limitations; that he insists by actual fraudulent concealment by defendant this cause or right of action did not accrue until the year 1915, the time of bringing this action, and hence the action is not barred; that the main legal proposition is that where a party against whom a cause of action existed in favor of another by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute of limitations would only commence to run from the time the right of action was discovered or might, by the use of diligence, have been discovered. The only authorities cited are in support of this proposition. Appellant cites District Township of Boomer v. French, 40 Iowa, 601;Wilder v. Secor, 72 Iowa, 161, 33 N. W. 448, 2 Am. St. Rep. 236;Carrier v. Railway, 79 Iowa, 80, 44 N. W. 203, 6 L. R. A. 799;Cook v. Railway, 81 Iowa, 551, 564, 46 N. W. 1080, 9 L. R. A. 764, 25 Am. St. Rep. 512;Bradford v. McCormick, 71 Iowa, 129, 32 N. W. 93;Findley v. Stewart, 46 Iowa, 655, 657;Cress v. Ivens, 155 Iowa, 17, 20, 134 N. W. 869;Aultman v. Adams, 35 Mo. App. 503;Mullen v. Callanan, 167 Iowa, 367, 379, 149 N. W. 516.

The gist of plaintiff's cause of action is based upon the alleged negligence of defendant in 1901, and the claim that defendant fraudulently concealed some of the effects of the injury caused by the X-ray machine. It is alleged that defendant knew and fraudulently concealed from plaintiff that the burning in 1901 would result in cancer. Necessarily the statement by defendant that the injury in the first place was only temporary would be his opinion, unless cancer results in all cases from such burning, and the pleading of such fact would, to a certain extent, be pleading a conclusion. It is not specifically alleged that burnings of this character result in cancers in all cases, though one part comes very close to it.

It is not claimed by appellant, as we understand it, that his cause of action is based on fraud under section 3448 of the Code. Under that section it is provided that the cause of action shall not be deemed to have accrued until the fraud shall have been discovered by the aggrieved party, and Code, § 3447, par. 6, limits to five years the period within which an action may be brought in such cases.

[1] It has been held...