Pickett v. Aglinsky, 4580.

• Citation: 110 F.2d 628
• Decision Date: 11 March 1940
• Docket Number: No. 4580.,4580.
• Parties: PICKETT v. AGLINSKY.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

110 F.2d 628 (1940)

PICKETT v. AGLINSKY.

No. 4580.

Circuit Court of Appeals, Fourth Circuit.

March 11, 1940.

J. Campbell Palmer, III, of Wheeling, W. Va. (Erskine, Palmer & Curl, of Wheeling, W. Va., on the brief), for appellant.

Jacob S. Hyer, of Elkins, W. Va. (Milford L. Gibson, of Elkins, W. Va., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment for plaintiff in a malpractice suit. There is evidence tending to show that the defendant physician negligently failed to remove a gauze or sponge which had been inserted in plaintiff's arm in the course of an operation, and that plaintiff sustained damage as a result thereof. A number of questions are raised by the appeal; but, in the view which we take of the case, the only one which we need consider is that relating to the refusal of the court to direct a verdict for defendant on the ground that the action was barred by the statute of limitations.

There is evidence from which the jury would have been justified in finding that defendant sewed up the sponge in plaintiff's arm in the course of an operation performed in December, 1934. There is no evidence, however, that defendant had knowledge of the fact, or that he intentionally did anything to deceive plaintiff with regard thereto or anything to prevent plaintiff's instituting action against him. The sponge was not discovered until an operation was performed on plaintiff's arm October 19, 1937. Defendant ceased treating plaintiff March 1, 1935, and never examined him thereafter except once in June, 1937. The action was instituted October 10, 1938, more than a year after that date. Viewed in the light most favorable to plaintiff, the evidence presents a case where plaintiff suffered injury as the result of defendant's negligence but failed to institute suit as the result of failure to discover the negligence until more than one year had elapsed after the act of negligence and after his last examination by defendant.

As the action is a personal one which does not survive, it is barred by the lapse of one year, the statute applicable, Code of West Virginia of 1937, Sec. 5404, being as follows: "Every personal action for which no limitation is otherwise prescribed shall be brought five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after."

The decisions of West Virginia must be followed in the interpretation of this statute; and there can be no question but that, under those decisions, the period of limitation runs from the time when the wrong is committed and the cause of action accrues, and not from plaintiff's discovery of it. Scott v. Rinehart & Dennis Co., 116 W.Va. 319, 180 S.E. 276; Boyd v. Beebe 64 W.Va. 216, 61 S.E. 304, 17 L.R.A.,N.S., 660; Merchants' Nat. Bank v. Spates, 41 W.Va. 27, 23 S.E. 681, 56 Am.St.Rep. 828; Harper v. Harper, 4 Cir., 252 F. 39. In the Rinehart & Dennis case, involving suit for damages as a result of contracting silicosis, which plaintiff did not discover until after the period of the statute had run, the court said:

"The period within which actions of this character must be brought is `one year next after the right to bring the same shall have accrued, and not after.' Code 1931, 55-2-12. Curry v. Mannington, 23 W.Va. 14; Kuhn v. Brownfield, 34 W.Va. 252, 12 S.E. 519, 11 L.R.A. 700. This statute has come to us from the mother state, being in the Revised Code of Virginia of 1819, chapter 128, section 4, and the Virginia Codes of 1849 and 1860, chapter 149, § 11. The language of the statute has varied slightly since 1819, but not its meaning. Both the Virginia and the West Virginia courts of last resort have consistently held that the right of action accrues when the wrong is committed, and in the absence of some act of concealment by the wrongdoer, the mere ignorance of the injured party of the actionable wrong will not suspend the statute. Citing cases.

"This construction of like statutes was so general in the states as early as 1830 that the Supreme Court of the United States then said: `We hardly feel at liberty to treat (it) as an open question.' Wilcox v. Plummer, 4 Pet. 172, 181, 7 L.Ed. 821. In 1841, after explaining that the statute of limitations must naturally receive a strict construction in a court of law, and that the court could introduce no exception to the statute which the Legislature had not authorized, the Supreme Court of Ohio said: `The true inquiry, therefore, at law, is, when did the cause of action arise, and not when did knowledge of that fact come to the plaintiff.' The opinion further said that though this construction had been sometimes questioned, the court was `not aware that it has ever been shaken.' Fee v. Fee, 10 Ohio 469, 36 Am.Dec. 103, 106, 107. This construction was still unshaken in 1904, the Supreme Court of Georgia stating it was `one of general recognition.' Davis v. Boyett, 120 Ga. 649, 48 S.E. 185, 186, 66 L.R.A. 258, 102 Am.St.Rep. 118, 120, 1 Ann.Cas. 386 (citing numerous authorities). This construction is yet unchanged. Wood on Limitations (4th Ed.) § 276c(1); 37 C.J., subject, Limitation of Actions, § 248; 17 R.C.L., Id., §§ 129 and 130; R. C.L., Permanent Supplement, pp. 4345, 4346; Annotation (1931) 74 A.L.R. 1318, etc."

The rule, applicable generally to the running of the statute in cases where damages due to negligent acts are not discovered or do not occur until after the period of the statute has run, was well stated by Mr. Justice Lurton, then a Circuit Judge, speaking for the Circuit Court of Appeals of the Sixth Circuit, in the case of Aachen & Munich Fire Ins. Co. v. Morton, 6 Cir., 156 F. 654, 657, 15 L.R.A.,N. S., 156, 165, 13 Ann.Cas. 692, as follows: "If an act occur, whether it be a breach of contract or duty which one owes another or the happening of a wrong, whether willful or negligent, by which one sustains an injury, however slight, for which the law gives a remedy, that starts the statute. That nominal damages would be recoverable for the breach or for the wrong is enough. The fact that the actual or substantial damages were not discovered or did not occur until later is of no consequence. The act itself, which is the ground of action, cannot be legally separated from its consequences. Were this so, successive actions might be brought in many cases of contract and tort as the damages developed, although all the consequential injuries had one common root in the single original breach or wrong. This would in effect nullify the statute."

This rule is generally followed in applying statutes of limitations to actions for malpractice of physicians and surgeons. Fadden v. Satterlee, C.C., 43 F. 568; Hahn v. Claybrook, 130 Md. 179, 100 A. 83, L.R.A. 1917C, 1169, and note; Capucci v. Barone, 266 Mass. 578, 165 N.E. 653. A modification of the rule is recognized in some jurisdictions, however, to the effect that the treatment by the physician or surgeon should be considered as a whole, and that the statute does not begin to run until the treatment is ended. Schmit v. Esser 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312 and note. But this modification could not help plaintiff here for the reason that his action was not instituted until much more than a year had elapsed after his last treatment by defendant.

And the general rule is that the mere fact that plaintiff was not advised as to his injuries or the existence of his cause of action is immaterial. This has been held with respect to X-ray burns (Ogg v. Robb 181 Iowa 145, 162 N.W. 217, L.R.A.1918C, 981); sponge left in incision, the case here, (Capucci v. Barone, 266 Mass. 578, 165 N.E. 653); and forceps left in abdominal cavity after operation. Conklin v. Draper 229 App.Div. 227, 241 N.Y.S. 529, affirmed, 254 N.Y. 620, 173 N.E. 829. This holding is in line with those to the effect that statutes of limitations protect attorneys against suits for breach of professional duty notwithstanding the ignorance of their clients as to the facts out of which liability arises (Cornell v. Edsen 78 Wash. 662, 139 P. 602, 51 L.R.A.,N.S., 279), and with those applying the same rule to the protection of abstractors. See note 15 L.R.A.,N.S., at pages 160, 161, and cases there cited.

Plaintiff relies upon section 5409 of the West Virginia Code of 1937, which tolls the running of the statute in favor of any one who shall "by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right." He argues that the sewing up of the sponge in his arm so that he could not know of its existence amounted to an obstruction of his right of suit within the meaning of this provision. It is expressly held in West Virginia, however, that, to render this provision of the statute applicable, there must be some positive, affirmative action on the part of the defendant "designed to conceal the existence of liability, and operate in some way upon the plaintiff, and prevent or delay suit for it." Thompson v. Whitaker Co., 41 W.Va. 574, 23 S.E. 795, syllabus 8; Boyd v. Beebe, supra, 64 W.Va. 216, 220, 61 S.E. 304, 17 L.R.A.,N. S., 660. It cannot be said that there was evidence here of any action on the part of ...