Sohn v. Bernstein

• Decision Date: 02 July 1971
• Citation: 279 A.2d 529
• Parties: Gertrude SOHN v. Louis BERNSTEIN.
• Court: Maine Supreme Court

Page 529

279 A.2d 529

Gertrude SOHN v. Louis BERNSTEIN.

Supreme Judicial Court of Maine.

July 2, 1971.

Childs & McKinley, Portland, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney, by Lawrence P. Mahoney, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and POMEROY, JJ.

DUFRESNE, Chief Justice.

During the 1959 Christmas season plaintiff's daughter sent her mother in Portland, Maine, from Cleveland, Ohio, where the daughter resided, a coffee percolator manufactured by Landers, Fray and Clark of New Britain, Connecticut. The yuletide gift was received by Mrs. Sohn through parcel post. On or about July 9, 1961 the plaintiff was using the percolator for the second time only when on the pouring of the first cup the cover fell off and hot coffee spilled over her body. The plaintiff suffered first and second degree burns. Defendant-counsel was hired within some 10 days of the accident and represented the plaintiff until the fall of 1965 when he was discharged.

The instant complaint seeks damages for malpractice. Plaintiff asserts negligence against her former attorney, claiming that he negligently failed to bring suit against Landers, Frary and Clark within the period of limitations provided by any pertinent statute applicable to her cause of action. The Justice below granted the defendant's motion for a directed verdict on the ground that at the time of plaintiff's discharge of her former attorney the statute of limitations in the State of Connecticut in cases of breaches of implied warranties was six years and, therefore, her cause of action for the original injury was not barred and there was no malpractice as a matter of law. Plaintiff's appeal from this ruling brings the matter before this Court. We sustain the appeal.

Statutory limitations against action in Connecticut

The first issue submitted to this Court is, whether at the time defendant's services were terminated plaintiff could have initiated and maintained against the manufacturer, Landers, Frary and Clark, in the State of Connecticut her action to recover damages suffered by reason of the defective condition of the coffee percolator, notwithstanding the defense of limitations as provided in such cases under the statutes of that State.

The parties have agreed before the Court below that the pertinent Connecticut statutes provide that actions for tort be commenced within one year after the cause of action in tort accrued, while actions for breach of warranty be initiated within six years after the cause of action for breach of warranty accrued.

The record reveals that the defendant was employed by the plaintiff to act as her attorney in the prosecution of her claim against the manufacturer of the coffee percolator, Landers, Frary and Clark, a corporation doing business in the State of Connecticut, for damages recoverable as a result of the injuries sustained in the accident of July 9, 1961. By accepting the employment, the defendant impliedly agreed to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake and subjected himself to liability to his client for negligence in rendering his professional services.

'An attorney, by presenting himself to the community as such, impliedly engages and promises to those who employ him that he will faithfully and carefully transact the business which may be entrusted to him; and when this engagement is disregarded and promise violated by his unfaithfulness or inexcusable inattention, he, or his executor or administrator, must respond in damages to the injured party.' Stimpson v. Sprague ad'x., 1830, 6 Me. 470.

Attorneys are under legal obligation to discharge their duty and to execute the business entrusted to them with a reasonable degree of care, skill and despatch and if the client is injured by the fault, negligence, or ignorance of the attorney, the attorney is liable. Smallwood v. Norton, 1841, 20 Me. 83; Wilson v. Russ, 1841, 20 Me. 421.

Legal malpractice may consist of the omission to perform a duty, in other words, the negligent failure to act. Ishmael v. Millington, 1966, 241 Cal.App.2d 520, 50 Cal.Rptr. 592.

If the plaintiff lost her cause of action by reason of the defendant's negligent failure timely to file suit within the period of the statutes of limitations, the parties do not question that such negligent omission to act would as a matter of law constitute a breach of the lawyer-client compact and be actionable in these proceedings. The proper test of the sufficiency of a complaint as against a motion to dismiss or of the plaintiff's evidence as against a motion for a directed verdict is whether the complaint sets forth facts or the evidence sustains proof of facts from which it can be deduced that the client could have recovered judgment absent the attorney's negligent omission to act. Hege v. Worthington, Park & Worthington, 1963, 209 Cal.App.2d 670, 26 Cal.Rptr. 132. When the facts are ascertained as they are in the instant case, the question of negligence or want of skill is a question of law for the Court. Gambert v. Hart, 1872, 44 Cal. 542, 552.

Since the defendant's discharge occurred more than one year after the accident, it is obvious as a matter of law that the defendant would be liable for plaintiff's loss in Connecticut of her cause of action in tort, unless at the time of the termination of the defendant's services an action was available to her in that State for breach of warranty. If the plaintiff under Connecticut law still had a valid and subsisting remedy at the time of the defendant's discharge from employment, then as a matter of law the defendant would not be liable in the instant action of malpractice. See, Huntington v. Rumnill, 1809, Conn., 3 Day, 390.

The plaintiff's action against the manufacturer of the coffee percolator, whether it be in tort for negligence or in contract for breach of warranty was a common law action and under Connecticut law the pertinent statute of limitations of the State of Connecticut as the law of the forum would apply. Thomas Iron Co. v. Ensign-Bickford Co., 1945, 131 Conn. 665, 42 A.2d 145; Morris Plan Industrial Bank of New York v. Richards, 1945, 131 Conn. 671, 42 A.2d 147. This would be so even though the accident out of which the cause of action arose took place in the State of Maine, since Connecticut has not adopted the new concepts of relative 'contacts' or 'interests' in conflict-of-laws cases. See, Landers v. Landers, 1966, 153 Conn. 303, 216 A.2d 183.

We are aware, however, Connecticut will apply the general rule that in transitory actions such as are involved in the instant case, whether ex delicto or ex contractu, matters of substantive law are governed by the law of the place of injury, breach or transaction, whichever may be pertinent, and matters of procedure by the law of the place where the action is brought, i. e. the lex fori. See, Commonwealth Fuel Co. v. McNeil, 1925, 103 Conn. 390, 130 A. 794. Substantive law is that which creates, defines and regulates the rights and duties of the parties. It is the source of the obligation incurred or liability imposed and gives rise to the cause of action itself. Adjective law, on the other hand, pertains to and prescribes the practice and procedure, the legal machinery or mode of action whereby the obligation or liability arising under substantive law is enforce and made effective. Petty v. Clark, 1948, 113 Utah 205, 192 P.2d 589.

Whether a given question involves substance to be determined in accordance with foreign law or merely affects the remedy and is controlled by the law of the forum, is itself a matter for the determination of the forum court. The issue before the Court was whether, at the time of the defendant's discharge, the Connecticut courts were available for the prosecution of the plaintiffs' cause of action. We will assume for our purposes, without intimating such is the law of this State, that the plaintiff at the time of her injury had a cause of action or right of redress against the manufacturer of the coffee percolator under Maine law both in tort for negligence and in contract for breach of warranty. The Connecticut courts would accept that plaintiff had a substantive right of action under Maine law but the enforcement of that right, whether it be viewed in tort for negligence or in contract for breach of warranty, would be determined in accordance with the remedial procedures available under Connecticut law.

The law of the forum (here Connecticut) determines whether the plaintiff's cause of action should be characterized as one in tort for negligence or in contract for breach of warranty or in the alternative at the suitor's election. Bank of United States v. Donnally, 1834, 8 Pet. 361, 8 L.Ed. 974; John Hancock Mutual Life Ins. Co. v. Yates, 1936, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106; Hopkins v. Kurn, 1943, 351 Mo. 41, 171 S.W.2d 625; Anderson v. State Farm Mutual Automobile Ins. Co., 1946, 222 Minn. 428, 24 N.W.2d 836; Hall v. Copco Pacific, Ltd., 1955, 9th Cir., 224 F.2d 884; Hausman v. Buckley, 1962, 2d Cir., 299 F.2d 696; St. Louis-San Francisco Railway Co. v. Superior Court, 1969, 276 Cal.App.2d 762, 81 Cal.Rptr. 705; Restatement, Conflict of Laws, § 584.

Thus the rule of law applicable in Maine as expounded by this Court in Doughty v. Maine Central Transportation Company, 1944, 141 Me. 124, 39 A.2d 758, and Alropa Corp. v. Britton, 1936, 135 Me. 41, 188 A. 722, allowing the pleader a choice of remedy,

'It is the form of action adopted by the pleader, rather than the cause of action upon which it is based, which determines the period within which it may be commenced.'

'If an injured party has a right to either of two actions, the one he chooses is not barred, because the other, if he had brought it, might have been.'

'If the facts disclose both a breach of an implied contract and a tort, the...