Weinstein v. Blanchard, No. 100.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtTRENCHARD, J.
Citation162 A. 601
Docket NumberNo. 100.
Decision Date17 October 1932
PartiesWEINSTEIN v. BLANCHARD.
162 A. 601

WEINSTEIN
v.
BLANCHARD.

No. 100.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1932.


162 A. 601
Syllabus by the Court.

Plaintiff brought suit against a physician and surgeon. Two counts alleged negligence on the part of the defendant in not carefully treating the plaintiff, the leaving of a drainage tube in the wound and permitting it to enter and remain in the body, and claiming damages for personal injury, medical expenses, and loss of earnings and business. Another count was based upon a claim for damages arising out of injury to the person by reason of the failure of the defendant to properly perform the alleged contract to operate upon and treat plaintiff, and claiming like damages. The evidence showed that the plaintiff was born January 27, 1905; that in August, 1909, he had pneumonia and pleurisy, and defendant was called to treat him; that defendant operated, making an incision in the right side of the plaintiff and placed two drainage tubes in the incision; that the wound and tubes were cleansed, and the wound dressed from time to time by the defendant, with the assistance of plaintiff's mother, until January, 1910; that towards the end of the treatment one of the drainage tubes was missing; that plaintiff's mother called attention to the fact and asked the defendant if it could have slipped into the wound; that defendant said that it had not, but, if it had, it would dissolve; that the mother's thorough examination of the room and surroundings at the time disclosed conclusively that the tube was not to be found; that defendant's treatment continued until January, 1910, when he discharged the plaintiff (the wound having healed), and never saw him again until after this suit was brought; that on July 8, 1928, the plaintiff became ill, and X-rays disclosed a tube in the lung, which was removed by another surgeon; that on January 27, 1926, the plaintiff became 21 years of age; that this suit was instituted October 29, 1928:

Held, that plaintiff's action was barred by section 3 of the statute of limitations (3 Comp. St. 1910, p. 3164), which provides that "All actions hereafter accruing for injuries to persons caused by the wrongful act, neglect or default of any person or persons, * * * shall be commenced and instituted within two years after the cause of such action shall have accrued and not after."

Appeal from the Supreme Court.

Suit by Murray Weinstein against Oliver R. Blanchard. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

See, also, 152 A. 787, 9 N. J. Misc. 113.

Stein, Hannoch & Lasser, of Newark, for appellant.

Edwards, Smith & Dawson, of Jersey City (Edwin F. Smith and Charles M. James, both of Jersey City, of counsel), for respondent.

TRENCHARD, J.

This is an appeal by the plaintiff from a Judgment entered on a nonsuit at the trial in the Hudson circuit.

The defendant was a practicing physician and surgeon, and was admitted to practice in this state in April, 1891. He operated on the plaintiff on August 10, 1909, and inserted in the wound two drainage tubes, one of which is alleged to have entered and remained in the body. On October 29, 1928, nineteen years after the operation, the plaintiff instituted the present action.

The complaint consists of four counts. The first and third alleged negligence on the part of the defendant in not carefully treating the plaintiff, the leaving of a drainage tube in the wound and permitting it to enter and remain in the body, and claim damages for personal injury, medical expenses, and loss of earnings and business. The second count, charging fraud, was withdrawn at the trial. The fourth count is based upon a claim for damages arising out of injury to the person by reason of the failure of defendant to properly perform the alleged contract to operate upon and treat plaintiff, and claiming like damages.

The defendant, answering the complaint, denies all charges of negligence, malpractice, or faulty operation or treatment, and further

162 A. 602

set up that the cause of action was barred by the statute of limitations.

Judge Ackerson, to whom the case was referred for trial, granted defendant's motion for nonsuit on the ground that the cause of action was barred by the statute of limitations, and we think rightly.

The evidence of the plaintiff showed that the plaintiff was born January 27, 1905; that in August, 1909, he, then residing with his parents in Jersey City, became ill; that the defendant was called in to treat and care for him; that the plaintiff was suffering from pneumonia and later pleurisy set in; that the defendant advised an operation; that the operation was performed by defendant; that in the operation an incision was made in the right side of the plaintiff to relieve the pleurisy, and in the incision two tubes were placed for drainage purposes; that the wound was dressed by the defendant with the assistance of the plaintiff's mother, and at intervals the dressings were removed, the wound cleaned, and, at times, the drainage tubes cleansed; that this continued until January, 1910; that some time toward the end of the treatment one of the drainage tubes was missing; that the plaintiff's mother called attention to the fact and asked if it could have slipped into the wound, and the defendant said that it had not, but, if it had, it would dissolve; that the mother's thorough examination of the room and surroundings at that time disclosed conclusively that the tube was not to be found; that the defendant continued the treatment until January, 1910, and then concluded the treatment and discharged the plaintiff, the wound having healed; that the...

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43 practice notes
  • Biglioli v. Durotest Corp., No. A--502
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 1, 1956
    ...resulting therefrom. Tortorello v. Reinfeld, 6 N.J. 58, 65, 77 A.2d 240 (1950); Weinstein v. Blanchard, 109 N.J.L. 332, 336--338, 162 A. 601 (E. & A.1932) and cases cited; Prosser, Torts (2d ed.), 57, 165; 63 Harv.L.Rev., supra, One element, then, in a cause of action for negligence is the ......
  • Heavner v. Uniroyal, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 5, 1973
    ...for breach of warranty in connection with a sale of goods or for violation of contract. Weinstein v. Blanchard, 109 N.J.L. 332, 338--339, 162 A. 601 (E. & A. 1932), overruled on other grounds in Fernandi v. Strully, 35 N.J. 434, 450, 173 A.2d 277 (1961); Burns v. Bethlehem Steel Co., 20 N.J......
  • Farrell v. Votator Division of Chemetron Corp.
    • United States
    • United States State Supreme Court (New Jersey)
    • January 22, 1973
    ...her action. The defense rested on the 2-year limitation in N.J.S.A. 2A:14--2 and the cases of Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601 (E. & A.1932) and Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950) which had given it rigid application. Adopting the discovery principle, we......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...while he inclined, on principle, towards a contrary view he considered himself bound to hold under Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601 (E. & A.1932) and Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950), that the plaintiffs' action, grounded on the charge that the doctors......
  • Request a trial to view additional results
43 cases
  • Biglioli v. Durotest Corp., No. A--502
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 1, 1956
    ...resulting therefrom. Tortorello v. Reinfeld, 6 N.J. 58, 65, 77 A.2d 240 (1950); Weinstein v. Blanchard, 109 N.J.L. 332, 336--338, 162 A. 601 (E. & A.1932) and cases cited; Prosser, Torts (2d ed.), 57, 165; 63 Harv.L.Rev., supra, One element, then, in a cause of action for negligence is the ......
  • Heavner v. Uniroyal, Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • June 5, 1973
    ...for breach of warranty in connection with a sale of goods or for violation of contract. Weinstein v. Blanchard, 109 N.J.L. 332, 338--339, 162 A. 601 (E. & A. 1932), overruled on other grounds in Fernandi v. Strully, 35 N.J. 434, 450, 173 A.2d 277 (1961); Burns v. Bethlehem Steel Co., 20 N.J......
  • Farrell v. Votator Division of Chemetron Corp.
    • United States
    • United States State Supreme Court (New Jersey)
    • January 22, 1973
    ...her action. The defense rested on the 2-year limitation in N.J.S.A. 2A:14--2 and the cases of Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601 (E. & A.1932) and Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950) which had given it rigid application. Adopting the discovery principle, we......
  • Fernandi v. Strully, No. A--100
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...while he inclined, on principle, towards a contrary view he considered himself bound to hold under Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601 (E. & A.1932) and Tortorello v. Reinfeld, 6 N.J. 58, 77 A.2d 240 (1950), that the plaintiffs' action, grounded on the charge that the doctors......
  • Request a trial to view additional results

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