Vaughn v. Langmack

• Decision Date: 11 March 1964
• Citation: 236 Or. 542,390 P.2d 142
• Parties: Roy VAUGHN, Appellant, v. R. S. LANGMACK, Respondent.
• Court: Oregon Supreme Court

Page 142

390 P.2d 142

236 Or. 542

Roy VAUGHN, Appellant, v. R. S. LANGMACK, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 9, 1963.

Decided March 11, 1964.

W. A. Franklin, Portland, argued the cause for appellant. On the briefs were Anderson, Franklin, Jones, Olsen & Bennett, Portland.

Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Rockwood, Davies, Biggs, Strayer & Stoel and Hugh L. Biggs and George H. Fraser, Portland.

Before ROSSMAN, P. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

LUSK, Justice.

The plaintiff in this action for malpractice against a duly licensed physician and surgeon has appealed from a judgment for the defendant which followed a ruling of the court below sustaining defendant's demurrer to the complaint, based upon the ground that the action is barred by the statute of limitation.

As stated in the plaintiff's brief:

'The sole question presented by this appeal is whether a cause of action for medical malpractice, arising out of negligently leaving and failing to remove a surgical needle from plaintiff's body, accrues at the time of the negligent act, or at the time it was or might reasonably have been discovered.'

The complaint alleged that on July 7, 1958, the defendant undertook to repair surgically a strangulated inguinal hernia from which the plaintiff was suffering; that after completing the repair the defendant negligently failed to remove a surgical needle used in the operation and closed the incision in plaintiff's abdomen leaving the needle still there and that plaintiff experienced pain and bloating in the abdomen thereafter and did not discover the cause thereof until October 10, 1962. Thereupon it became necessary for him to submit to further surgery for removal of the needle.

This action was commenced January 9, 1963, about four and one-half years after commission of the alleged negligent act.

We affirm the judgment of the circuit court.

ORS 12.010 reads:

'Actions at law shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute. The objection that the action was not commenced within the time limited shall only be taken by answer, except as provided in ORS 16.260.'

ORS 12.110 reads in part:

'(1) An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit. * * *'

It is not disputed that ORS 12.110(1) applies to this case. But plaintiff contends that his cause of action did not accrue until he knew or should have known of the injury and that therefore the statute did not commence to run until that time. We held otherwise in the similar case of Wilder v. Haworth, 187 Or. 688, 213 P.2d 797. We adhere to that decision.

The pertinent legislative history is of prime importance to the determination of the question before us.

The first statute of limitations was enacted in 1862. Deady, General Laws of Oregon, 1845-1864, Ch. 1, Title II, p. 140, section 3, read substantially as the present ORS 12.010. None of the numerous provisions which followed it prescribing time limitations for commencing various classes of actions contained any exception based on the time of discovery of the injury or the wrong. All such actions were barred unless they were commenced within a specified time 'after the cause of action shall have accrued.'

There was, however, such an exception applicable exclusively to suits in equity. Section 378, chapter 5, p. 244, Deady, supra, provided that: 'A suit shall only be commenced within the time limited to commence an action' but '[i]n a suit upon a new promise, fraud or mistake, the limitation shall only be deemed to commence from the making of the new promise, or the discovery of the fraud or mistake.'

Section 6, ch. 1, Title II, p. 141, of Deady prescribed a six-year limitation for '[a]n action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.' The statute was amended by Oregon Laws 1870, section 9, page 34, so to make applicable to the actions just enumerated a limitation of two years. This amendment became a part of section 8, subdivision 1, L.O.L., and is now included in ORS 12.110(1).

An action for malpractice is an action for an 'injury to the person or rights of another, not arising on contract', and is governed by the provision just referred to.

These statutes were in effect without change when the cases of Hood v. Seachrest, 89 Or. 457, 174 P. 734, and Schwedler v. First State Bank of Gresham, 92 Or. 33, 179 P. 671, were decided, the former on September 10, 1918, and the latter on April 8, 1919. Both were actions in deceit for fraud growing out of land sale contracts. The actions were held to be barred because they were not commenced within two years after the cause of action accrued.

In Hood v. Seachrest it was contended by the plaintiff that the statute did not commence to run until the discovery of the fraud. This court rejected the contention. After setting out the provisions of the statutes regarding law actions and those regarding suits in equity to which we have referred, the court said:

'When we read these two sections together, it is obvious that the Legislature intended that the rule adopted in law actions is to differ from the one followed in suits in equity. It will also be observed that while exceptions to the general effect of section 3, L.O.L., were considered by the Legislature, the Code is silent as to any exception in the case of fraud and deceit. This also is a convincing fact in the discussion. * * *' 89 Or. at 462, 174 P. at 735.

Section 3, L.O.L., was the same as section 3 in Deady, supra. The statement in the opinion in Hood v. Seachrest that exceptions were considered by the legislature evidently had reference to the following language of section 3, L.O.L., 'except where, in special cases, a different limitation is prescribed by statute.'

Schwedler v. First State Bk. of Gresham was decided upon the authority of Hood v. Seachrest.

With the decision of this court in Hood v. Seachrest before it and while Schwedler v. First State Bk. of Gresham was pending, though undecided, the legislature in 1919 adopted an amendment to section 8, L.O.L., so as to make that section read as follows:

'Sec. 8. Within two years:

'(1) An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not herein especially enumerated; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.

'(2) An action upon a statute for a forfeiture or penalty to the state or county.' (Oregon Laws 1919, ch. 122.)

The amended statute became ORS 12.110(1) and (2).

If a case of statutory construction ever called for the application of the maxim expressio unius est exclusio alterius, we have it here. The maxim is a compendious statement of a logical principle. As a recognized authority says: '[I]t is not of legal origin; rather it is a product of 'logic and common sense'.' 2 Sutherland Statutory Construction (3d ed.) 415, § 4916. Logic and common sense make unavoidable the conclusion that when the legislature, evidently prompted by the decision in Hood v. Seachrest, amended the statute in 1919 so as to provide that the time limited for bringing an action based upon fraud or deceit should commence to run only from the discovery of the fraud or deceit, it intended that, as to all other actions, the provision that the time commences to run from the accrual of the cause of action should remain unchanged.

Similar considerations moved this court to hold in Hood v. Seachrest that, when the legislature provided that in suits in equity based upon fraud the time limitation should not begin to run until discovery of the fraud, but included no such provision in the statute governing actions at law, the legislature intended that as to the latter class of actions the time should begin to run when the cause of action accrued, not when the wrong was discovered.

It is, furthermore, obvious that the legislature considered that the phrase 'after the cause of action shall have accrued' and the phrase 'from the discovery of the fraud or deceit' mean different things; the plintiff would make them mean the same thing.

'[I]t is a well established rule that in the construction of statutes, words used in the statute which have a well defined legal meaning are to be given that meaning.' Cordon v. Gregg, 164 Or. 306, 311-312, 97 P.2d 732, 101 P.2d 414. See, also, Reed et al. v. Reed, Exec. et al., 215 Or. 91, 96, 332 P.2d 1049; 2 Sutherland Statutory Construction (3d ed.) 438, § 4919. The word 'accrued' has a well defined legal meaning, certainly so when used in connection with an action for malpractice. That meaning was elucidated by this court in Piukkula v. Pillsbury Astoria Flouring Mills Co., 150 Or. 304, 42 P.2d 921, 44 P.2d 162, 99 A.L.R. 244. At page 324 of 150 Or., at page 928 of 42 P.2d, the court stated the holdings in Cappucci v. Barone, 266 Mass. 578, 165 N.E. 653, and Ogg v. Robb, 181 Iowa 145, 162 N.W. 217, L.R.A.1918C 981, two malpractice actions which we said applied the principle 'that the cause of action arises, not when the entire scope of the injury has revealed itself, but when the tortious act occurred.' In the former case a physician had left a sponge in the abdomen of the plaintiff upon whom he operated. In the latter an...