Billings v. Sisters of Mercy of Idaho

“ * P.2d 224 be verified claim must claimant, agent his or at- the oath of Billings, Leslie W. and BILLINGS Verda torney, to the effect that the affiant believes wife, Plaintiffs-Appellants, v. husband and just.” clearly in- to be the same There is filing a desire to frustrate the dicated IDAHO, corpo SISTERS OF MERCY OF ration, Anthony Hospital, frivolous claims. Claimant has done noth- St. and d/b/a Lloyd Call, Call Dean and Executors any way would frustrate this ing which Call, Deceased, the Estate of O. F. De statutory place, purpose. In the first claim- pon f end ants-Res dents. ant has held out the world that it is re- No. 9382.

sponsible everything for contained Supreme Court of Idaho. Therefore, pre- lien. as indicated claim of allega- viously, claimant bound Jan. Secondly, by tions contained therein. written, express, delegation of

claimant’s

authority, it has done its best to insure that

only claim of lien will a correct be filed. addition, complete compliance there authority written for insertion of

with the description.

the land

Respondents in way have no been harmed legal description by the insertion of the agent.

claimant’s The claim of lien as filed

gave required by them all of the notice Indeed, appears

law. that the one by any could be harmed here

who error claimant. If example

would be the its wrong had furnished the

agent description might failed.

the lien judgment of the trial court is there-

fore reversed the case is remanded for proceedings. appellant.

further Costs to

KNUDSON, J.,C. McFADDEN, SMITH, JJ.,

TAYLOR concur. Huntley, Racine, Jr., Robert C.

Louis F. Pocatello, Olson, Fer- Jr., and William D. Cal., appel- Glenn, Oakland, guson & lants. Maguire, Hugh Merrill and C.

Merrill & Pocatello,

Jr., respondents.

McQUADE, infection, pain, depression sexual as a Justice. negligent result leaving sponge of the Appellants’ complaint amended states body. in her It alleged also 10, 1946, July Billings that on Mrs. was respondents of the precipitated operated upon by Dr. O. F. Call in the surgical menopause causing Billings Mrs. Mercy Hospital Sisters of in Pocatello. to suffer “hot flashes” requiring extensive Shortly operation Billings after the Mrs. hormonal treatment. began pain. to suffer considerable Subse- quently Respondents she to Dr. went Harmes Amer- moved to dismiss the amend- complaint ican Falls. continued She under his care ed grounds: on two 1. The through apparently complaint but he was unable failed to state a claim to determine the cause of her granted, difficulties. relief appel- could be 2. The lants’ by claim is barred statute up From 1948 into 1958 she consulted limitations. The trial court did not rule physicians parts various in different on ground, the first but rendered judg- United States which her husband was ment ground of dismissal on the second employed superintendent. aas construction Appellants appeal alone. judgment from the early part From the of 1958 May, until only question presented of dismissal. The 1961, she consulted a succession of doctors: appeal on appellants’ is whether claim is Mountain, Dr. Huron of Iron Michigan, barred the statute of limitations. Concord, California, Dr. Walton of Dr. applicable statutes are I.C. 5-201 Antioch, California, § Staffer of Dr. Sandlin 5-219, which as follows: Antioch, California, read and Dr. § Bruno of “Civil actions can 5-201 Pittsburg, § California. None of the above periods pre- within the commenced successfully physicians diagnosed the na- chapter after the cause scribed Billings’ Mrs. ture of affliction. * * accrued, action shall May, 1961, Finally, Billings Mrs. was * years: two 5-219 “Within Oakland, Dr. examined Brinton of Cal- damages An action to recover “4. ifornia, who concluded that an exploratory person, or for the for an necessary. operation operation This wrongful one caused death of sponge gauze disclosed area where neglect of another.” act performed by surgery had been Dr. Call on July and her husband 1946. She civil a two statutes these Based on brought May, this suit in to damages for recover action wrongful act by the caused person, complaint states Appellants’ amended commenced another, be can neglect of Billings constant has suffered that Mrs. subject years The earlier on this two after the cause of action cases were within Respondents mostly decided in favor of See shall have accrued. insist defendants. Annot., day Capucci the cause of action on A.L.R. accrued sponge Barone, Billings’ was left in Mass. that the Mrs. 165 N.E. 653 Appellants typical body. contend that the cause of of the earlier cases. As in the case, sponge not accrue until negligence did was instant action consisted of during exploratory opera- sponge wound; leaving discovered in surgical point major The tion. focal this case issue was the statute of limita- determine when the cause of action accrued. As tions. that court said: many “Upon

In this case counsel have cited this branch of the defense the precisely ques- legal point single is, cases on in question When did the cause tion. underlying in theme all of the of action accrue? The defendant as a represents cases surgeon, May 11, conflict between two on impliedly policies basic policy of the law: 1. The undertook to use operation care claims, discouraging fostering perform. stale he was about to Any act of and policy 2. The allowing meritorious negligence misconduct or part on his opportunity present claimants an their in the service undertaken was a breach claims. contract, of his gave rise to a right of tort, contract or Billings alleges Mrs. she has been al- statutory period began to run at pain most continuous since the time of the time, and not when the actual operation by attempt- Dr. and has Call damage ascertained, results or is as the ed find out what caused her so much plaintiff damage contends. The sus- agony. great There is a deal of difference tained the wrong done is not the typical plaintiff between her case and the action; cause of and the statute is a appear this area of as she does not cases bar to original cause of action al- “sitting rights;” to have been on her though nominal, damages may yet, years passed opera- fifteen between the and to consequential all the damages complaint. tion and filing of her resulting from though damages such doctor accused is dead. may be substantial and not foreseen.” (Neither urged application of I.C. 5-231). executors, Lloyd 5-327 or His § It was also held to be well established Call, Dean plaintiff defendants that the bare unable fact was suffering cause. discover the cause of his 490 Murray Allen, In

immaterial. v. 103 Vt. in this Plaintiffs area successfully (1931), plaintiff, A. 678 after tort statute of avoided limitations having operated upon been in did not complaints couching their in terms of con sponge body discover that a left in was her longer period tract limitation, until 1929. The court therein stated: of the tort instead statute of limitations. Noah, 209 Ala. In Sellers 95 So. 167 plaintiff right argues “The that the (1923), a needle plaintiff’s was left in body. of action did not accrue until the fact alleged He a breach contract and suc gauze had not been removed cessfully avoided the earlier commence discovered, that, consequently, was and ment period. of the limitations In the statutory period limitation did exception, third the fraudulent concealment begin to run that time. But until theory, the statute of limitations is held not right of action accrued when the begin to run until the cause of action is negligent upon act which the action is discovered or could have been discovered place, based took not when the diligence reasonable part on the of the consequential damage became known. injured party. This is based principle applied This been in num- rationale that a wrongdoer permitted is not cases wherein the facts were erous profit from his fraudulent conduct. At very similar to those in the case before the time the 74 A.L.R. annotation most us.” recognized courts that placed this rule a only those earlier cases there were high proof

In burden plaintiff. on the A possible exceptions plaintiff required to the rule that three was to show some affirm day on of action accrues act the cause ative part concealment on the object is in the wound. The foreign Haselo, closed defendant. App. In Tulloch v. one, excep continuing negligence Div. (1926), plaintiff first N.Y.S. 139 tion, usually when a stated as follows: alleged is negligently that the defendant ex object foreign body a leaves doctor tracted tooth and let it fall into her throat patient and lung. continues to from treat him whence it entered the fur She hp alleged thereafter, fraudulently is ther the doctor said to had concealed be not from her the fact that he had let the tooth action, in his initial negligent but also object negligent allowing to remain fall down her throat. The court held patient successfully alleged still under his while care. she had not fraud. “ * Lengen, alleged Sly Misc. nothing v. Van 198 N.Y. There (1923).. exception may any The second then which we infer intentional fraud S. 608 recognized theory. misrepresentation was called the contract ulent as to the of fact ** case, however, rule was not the Perrin lung tooth presence expressed Huysman clearly so it was as Austin, 156 S.W. Tenn. Bodne Kirsch, supra. alleged plaintiff 2d tooth in left a broken negligently defendant continuing rule The contract carelessly negli he and that gum her recognized ex still rule were The court to disclose the fact. gently failed con ceptions the fraudulent the averment was insufficient to that held con In so as fraudulent cealment rule. far It further stated that it fraud. out make appeared it to cealment is concerned fraud in to toll not assume order the could plaintiff had very much the rule that a still In of limitations. Brown v. Grin statute prove affirmative act conceal some 533, sted, Mo.App. 252 (1923), 212 S.W. 973 part of defendant. Silver ment on the the hand, similar those at the under facts 133, Shallenberger, Ga.App. 174 tooth v. 49 surgeon know that the must court held are, however, (1934). There S.E. 365 plaintiff’s presence sponge the necessity lessening cases scattered guilty body be held to be before he could fiduciary emphasis on relation putting fraud. patient. v. ship Burton between doctor Annot., (1943), presents A.L.R. 209 144 Tribble, (1934), Ark. 70 S.W.2d 503 189 topic. A.L.R. effort second on this In Barnard, Thompson (Tex.Civ.App.) 142 v. general it was stated as a 1943 still rule (1940). These cases reduced S.W.2d 238 day the cause of accrues on the that considerably. plaintiff’s burden object foreign is left in the surgical (1961), Annot., A.L.R.2d 368 discusses 80 jurisdictions by Two that time wound. took changes judicial more recent some Huysman exception to the rule. In v. place, the contract thinking. In first Kirsch, (1936), 6 57 Cal.2d P.2d 908 into disuse. virtual Second- rule has fallen surgeon defendant failed remove a rub- continuing negligence rule has been ly, operation. ber tube from the wound jurisdictions. accepted majority of in a The defense was statute of limitations. Thirdly, longer rule no held, reasoning alia court Inter Louisiana, but case, to California compensation limited a workman’s juris- accepted following been plaintiff’s not accrue also cause action did Ayers Pennsylvania, Morgan, v. have, dictions : reasonable through until she could New (1959); 154 788 physical A.2d care, 397 Pa. of her ascertained cause 434, 173 Strully, v. 35 Louisiana, Jersey, Fernandi result had distress. In similar N.J. ; Oklahoma, Jones, (1961) Seitz years v. A.2d 277 in Perrin been reached two earlier Nebraska, (1961); Okla., P.2d 300 In 370 Rodriguez, La.App., (1934). 153 So. 555 492 Morrow, 174 Neb.

Spath v. 115 N.W.2d action was barred statute of limit- ; Missouri, (1962) (by statute) Despite Mo.Rev. ations. the fact specific no 516.140, Tar, cited in Thatcher v. De constituting Stat. facts concealment are stated in ; (1943) Mo. 173 S.W.2d 760 opinion, Flor the court held that fraudulent ida, Brooks, Fla., City So.2d of Miami v. concealment existed plaintiff’s and that ac- ; Texas, (1954) possibly McFar tion was not barred. Hendrix, In Baker v. Connally, Tex.Civ.App., land 252 S.W.2d 126 W. Va. 27 S.E.2d 275 (1943), a sponge plaintiff’s was left in abdomen. She very general made allegations of fraud exception fraudulent concealment which seemed to merely establish that the extensively has been and is now liberalized defendant had remained silent. The court receiving greater emphasis. was stated As allegations, held that such true, if were Note, in “ (1957), 528 at 536 Ind.L.J. sufficient to toll the statute of limitations. * * * early In cases a strict adherence Guy Schuldt, 236 Ind. 138 N.E.2d misrep- requirement to a affirmative metal plaintiff’s was left in leg. resentations as of an existence allegations No fraud were contained in prechided where the relief in situations complaint. Nevertheless, the court re- weapon physician utilized his most effective plaintiff’s fused bar cause of action. Only that of mere silence. concealment: They held that the statute would be tolled conduct, thought, involved affirmative plaintiff if prove the could that defendant’s degree turpitude deemed es- of moral that conduct was fraudulent. In Hinkle v. Har- Later sential to doctrine. invocation of the gens, (1957), 76 S. D. 81 888 N.W.2d requirement cases of have abandoned the plaintiff’s a needle was left in back. conduct, generally affirmative now plaintiff allege than silence did little more fiduciary relationship held that the between part on court of the defendant. physician patient imposes duty of allega- plaintiff prove held if this that could disclosure, breach of which constitutes tion, be then the would statute of limitations ” * * * fraudulent concealment. They tolled. felt silence combined jurisdictions accepted At least six have relationship was fiduciary with the existing the more liberalized version of the fraudu part of .sufficient to on the constitute fraud lent concealment rule. In Health Crossett and Colorado defendant. In Arizona Croswell, Center 221 S.W. Ark. conceal- liberalization of the fraudulent 2d in (1953), steel wire was use left ment rule is the courts’ indicated essence, plaintiff’s abdomen. The court was asked In term “constructive fraud.” plaintiff’s to rule whether cause of with jurisdictions dispensed or not these two exception. inherently harm unknowable requirement In Morrison of scienter. exception has tell, can this (1948), So far as we Acton, P.2d 590 Ariz. object foreign cases. never been used parts equipment left broken dentist cases restricted to application Its had rea- been jaw. patient’s his The Arizona court deal compensation area workman’s that, soned exercise reasonable Thomp Urie v. ing industrial disease. diligence, known should have defendant L.Ed. son, 337 U.S. 69 S.Ct. equipment Good broken off. his had this typical cases in required (1949), him 1282 practice medical would have plaintiff silicosis. His area. That contracted equipment. to locate and remove this plain- Thompson failure to least inform bring remove or at He did suit until tiff, fraud, tolling constituted constructive exposed to argued been that since had Urie In Rosane the statute of limitations. of action silica since his cause dust Senger, 112 P.2d 372 Colo. he instituted long must have accrued before body. plaintiff’s surgical gauze left was however, Court, Supreme the action. The was fact alone The court held that plaintiff. opinion held for the It was their fraud. sufficient constitute constructive plaintiff’s did not ac cause of They fraud constructive reasoned that crue after received notice until he had applied any where be should situation legal rights. As the invasion his from defendant’s is concealed stated: Court plaintiff, innocently; matter how no therefore, plaintiff’s action was held not barred “If Urie held were be barred the statute limitations. prosecuting must this action because he law, said, to have as matter of It is obvious that the above mentioned prior to November contracted silicosis jurisdictions, through liberal use 25, 1938, mean that *. It would exception, achieve fraudulent concealment past time, unknown at some moment in jurisdictions the same as do those result inherently ret- even in unknowable accept both rule. rospect, charged Urie with knowl- plaintiffs would types jurisdictions who tragic disintegra- edge of the slow and plead- formerly have their cases on the lost lungs; tion his under this view try ings into court allowed entrance diagnose Urie’s failure to within actions. their applicable dis- statute of limitations a n develop- yet symptoms ease whose had Thus far we have considered the not exceptions general four to the rule. obtruded on his consciousness would ment of right another, Appellant yet asks consider us to constitute waiver of his to com- 494

pensation day at (1961) Appellants the ultimate of dis- terminated their re- covery disability.” lationship shortly with the defendant doctor after operation. issue, As this is not an on, From the we have seen the 1930’s we do not feel justified ruling in whether courts retreat from an almost uniform accept Idaho would Appel- such a doctrine. position permits to one trial which often lants accept also ask tous an to extension change of these This actions. has been the continuing rule; pointed out in Note Ind.L.J. physician’s duty breach of until continues (1957) page 529: object the foreign removed, and the very early period “At a the courts period limitations, therefore, does not the enthusiasm of did share begin object to run foreign while the un- legislature for the statute of limit- knowingly patient’s remains within the ; it ations was considered uncon- body. This rule apparently first an- defense, strictly scionable construed nounced in Tucker, Ohio in Gillette v. party against seeking bring him- Ohio St. 65 N.E. provisions. within statute’s self doctrine has rejected by since been Ohio After the came to courts consider such and other courts and acknowledged is now beneficial, statutes it was generally only California, Huysman Kirsch, recognized application inflexible supra, and possibly Pennsylvania. Ayers legiti- would result sacrifice Morgan, supra. In view of the conclu- along spurious, mate claims with the herein, sion we reach we need not discuss always exceptions and numerous were this doctrine further. implied. applicable mal- Limitations impossible, We also find it context, in this practice presented singular suits ex- accept the inherently unknowable harm ception attitude, to the general lenient exception as Thompson, stated Urie v. however, early it is since the supra. Although that case has its similar- ’30s removing that devices used for hand, exception ities case at statutory has bar in other cases have employed malprac- extensively been briefly never been more than mentioned in tice actions.” foreign malpractice object medical this, cases. Because of obvious dis- and the Appellants accept also ask us to con background (the legislative similarities tinuing negligence exceptions as one of the the difficulty the in- ascertaining when general what been termed the rule. jury attempt Annot., occurred) it unwise to we find Annot., A.L.R. 1317 (1943), Annot., use A.L.R. 209 80 A.L.R.2d instant case.

495 plaintiff of The defendant told has been at tiff’s back. of the contract rule Use Howard, this, operation remove Idaho, performed 52 tempted Trimming v. 412, defendant advised the that needle. The In the (1932). Idaho 16 P.2d 661 fragment plaintiff the needle had been re- rejected that the case we its use and held however, years plain- ; four later the malpractice gist action is moved fragment employ was tiff that the needle and not a contract of learned breach of the presented Plaintiff two still used still his back. While the contract rule is ment. court; first was Finestone, N.Y. the the occasionally, causes of action to Robins v. 308 operation, and generally upon it based the unsuccessful 127 330 N.E.2d upon physician’s recognized than the being a device the second was based more of Note, he removed failure to had not a valid of law. 64 W.Va.L.Rev. disclose rule however, court, fragment. the needle This 412 decision, as if were in its the case treated accept Appellants contend should that we breaking original based act of fraudulent liberalized version operation. is stated It needle and not the rule. This we are unable concealment page page Reports at 416 of the Idaho [at Howard, Trimming As stated in v. do. ; Idaho, of 16 page 416 of at 662 P.2d] 52 page supra, page 52 16 P.2d at Idaho “ * * * injury, it caused original attempted plaintiff invoke when carelessness, misconduct, by negligence, or “ * * * limitations, statute of fraud action; whatnot, remains the sole cause of [Fjraud mistake must be the substantial discovery never question solely the action must rest causes action: entered into court’s decision as upon them, proof.be primarily and their es- plaintiff presence knew of the of the needle ” * * * any relief. sential to fragment day his it was back on the repre- Relying upon broken off therein. precluded that we are not It is clear de- had been made sentations which discovery be- doctrine1 adhering to the he fendant-physician, Trimming alleged that Trimming v. How- of our decision cause needle had been removed believed the case, defendant, ard, supra. operation. Furthermore, plaintiff plaintiff, broke off attempting to treat discovery present doctrine to plain- did not hypodermic needle in the portion of a (1962); 38, 115 Kirsch, Thatch Huysman 581 P. Neb. N.W.2d v. 6 Cal.2d 57 Tar, Rodriquez, (1936); De Mo. 173 S.W. Perrin v. 351 153 er v. 2d 908 City Brooks, Ayers (1943); Morgan, v. Miami (La.App.1934); 2d 760 v. So. 555 (Fla.1954); (1959); McFarland v. 306 154 70 So.2d Pa. A.2d 788 Connally, (Tex.Civ.App. Strully, 252 S.W.2d A. v. 35 N.J. Fernandi Okl., 1952). (1961); Jones, 37 2d 277 Seitz Morrow, (1961); Spath P.2d “ * * * court solely upon as he based his case lows, ‘cause of action’ surgei'y contract for con- fraudulent which commences period the limitations question cealment. Thus applica- should not refer to the ‘technical’ breach of tion of the doctrine one first duty plaintiff determines whether the impression in Idaho. any legal right, but to the existence practical remedy.” position

Respondents’ is illustrated Long Campbell, case of De 157 Ohio St. legislative Relative intent, to respondents 22, 104 N.E.2d It held suggest that the legislature clearly intended plaintiff’s therein that cause action ac- preclude to to adherence the discovery doc- crued at the time of the operation and not by trine mentioning discovery in the fraud upon the foreign object. of the section of the statute of limitations not The court plaintiff’s reasoned that the right mentioning anywhere it else. These two are to sue at accrued time foreign ob- distinct causes of action and their applica- ject body. was left in reasoning his This tion entirely is different theories subjected has been to much criticism. In- proof. deed, appears it of the courts most another, In one context or it adopted which adhere to the rule in the been stated that statutes of are limitations Long merely De case have transferred the repose, object statutes of which is to applies rule ordinary to torts without prevent fraudulent and stale actions from noticing they fact that dealing are up springing great lapse after a of time. entirely course, an different situation. Of Actions, Limitations of 1 (1948). C.J.S. plaintiff when a is run down an automo- present These are considerations in a bile, is clear that it his cause action will object all, foreign case. First of the exist on that

accrue date. This is not be- sponge, gauze, ence pin of a or or sue, right a cause he has but also because body plaintiff a negatives fraud. Second judicial process use he can to secure en- ly, plaintiff we do not often a encounter right. forcement of that surgeon aWhere guilty “sitting rights.” who is on his If negligently sponge body leaves a of a any rights, one is unaware that he has it plaintiff, plaintiff might possess while the “sitting” said cannot be that he on them. sue, potential right some has means he no Strully, supra, As was stated in Fernandi v. of developing acting upon it right, or involving a 173 A.2d at case the exact until he able discover the present as here : considerations surgeon. logical It is to fol- more “It must be borne mind that Mrs. Note, Develop- low reasoning stated ques- Fernandi’s claim does not raise Limitations, ments in the Law: Statutes of credibility (1950), to her nor it Har.L.Rev. 1177 at 1205 as fol- tions as does earlier, juris- least six cept. As noted professional diag- matters of on rest accept the liberalized version of dictions nosis, It rests judgment or discretion. object fraudulent concealment doctrine. Continu- presence foreign of a on accepted by majority following opera- ing negligence is her abdofnen within A.L.R.2d, Annot., jurisdictions. performed upon defend- her tion supra, lapse reasoning of time at 380. The behind Urie Here ant-doctors. Thompson, danger supra, yet or false has created an- does not entail claim, danger exception other compen- nor the workman’s frivolous speculative Roybal White, claim. sation area. Even or uncertain sug- permit the N.M. 383 P.2d circumstances do not one of re- may spondents’ gestion strongest cases, that Mrs. Fernandi recognizes the but, rights hardships on knowingly slept her created on a strict adherence to “general cause contrary, that the rule” suggests establish that were pleaded fraud unknowable action was unknown and entirely result would be Indeed, shortly instituted different. until before she appears her it that most fairly jurisdictions, that she cries out suit. when faced with the set of Justice ap- day in court and presented be afforded a facts we have would, herein on may be theory this pears another, to us that evident one appellants allow done, confined highly at least in present come into court and their claims. impair- case, any type undue apply of without “general To the label of rule” to re- or the two-year limitation spondents’ position of the ment and minority rule to the repose under- of discovery considerations only doctrine misleading is but If, hoped, result- be it. as is to If, lie erroneous. however, it is necessary a produces ing jeopardy apply to defendants labels, appears that the so-called in of care connection greater “general measure rule” as stated in A.L.R. is much the surgical operations, so minority fact the rule. better.” reality, In “general rule” has strenuously that

Respondents assert little to recommend it. It is neither the Re- minority rule. discovery is a doctrine position majority jurisdictions of a of the eight, at only or argue that spondents also firmly accepted of nor is it based on considerations most, jurisdictions have nine out, will, therefore, justice. ad reason or point We Respondents fail to this rule. foreign only following to the rule: where however, discovery is here doctrine that the body patient’s object negligently left in a is many exceptions to the so-called one patient ignorance is in surgeon and the us ac- they would have “general rule” fact, thereof, consequently right part and of his erly of the party an esential in- malpractice, papers required of action will serting pay the cause such of, expense patient learns transcribing does not accrue until the additional McCormick, care and Taylor or in exercise of reasonable same. 8 Idaho pres- diligence 66 P. should have learned of 805 (1901). body. foreign object

ence in his of such pro- Reversed and remanded for further Jones, supra. Seitz v. ceedings. Respondents filed a motion to appellants, Costs to transcript less the transcript appeal strike on certain costs mentioned herein. they on the im grounds

instruments are KNUDSON, J.,C. and McFADDEN and material, superseded nullity. The TAYLOR, JJ., concur. instruments into two cate contested fall gories. group orig first consists SMITH, (dissenting). Justice complaint

inal and the filed instruments of, opposition it. favor These were I dissent. superseded filing of the amended dissimilarity view of the rulings in the complaint complaint. an is When amended appellate courts in the area of the case filed, place original, it takes the bar, purpose no useful can be served in subsequent proceedings in the case are

all lengthy aspects discussions of of the diversi- Ryan upon pleading. based amended ty reasoning of the various decisions. I Co., Mining Idaho Old Veteran shall limit this dissent to discussion of the Henderson, Armstrong P. 1076 Idaho, law as it exists in legisla- based 566, 102 16 Idaho P. 361 policy tive not in contravention of basic concepts judicial constitutional law category The second consists of interpretations. filed relative instruments production on procedure Call, documents. The basic facts are that Dr. now are immaterial deceased, instruments performed operation upon ap- These the trial and no court ruling pellant Billings, July error Mrs. aftercare, was, thereon. The issue

predicated period involved such there did if 10, 1946, appeal of this case the action of later than not continue October respect sought judge the amended the services of another trial when she Respondents’ physician. motion to Thereafter consulted vari- complaint. strike she papers surgeons in continuous granted. physicians in Where are ous is therefore 2, 1961, pelvic explora-' a transcript prop- in the succession. cluded June must be com- commissioners sponge in gauze a operation revealed tory months after menced within six operation. She original the area by such rejection thereof Re- the first May 1962. action this commenced of the stat- board.” defense interposed the spondents 5-219, limitations, ground- I.C. § ute — brought 5-222 “an action 3. I.C. § dismiss. The motion their ed thereon upon a a balance to recover due and entered the motion granted trial court mutual, open and current ac- leave to without of dismissal judgment * * * count, cause of ac- appeal resulted. amend, May This 1963. is deemed to have accrued tion the time of the last item actions can provides that civil 5-201 I.C. § proved in the account on either pre- periods within the only he commenced side.” chapter “after the cause of scribed when, accrued, except - have shall “actions brought 4. I.C. 5-223 § pre- cases, limitation is different special money property recover or de- must be That section statute.” scribed bank, banker, posited any I.C. 5-219 which pari materia with § read company saving trust or alia, for the commencement provides, inter society, no begins loan limitation years two “to recover action within of an to run until after an authorized person.” injury to the Such damages for an demand.” special in which not a case an action is - against 5. I.C. 5-237 “actions di- § period applies, than the limitation different or rectors stockholders of a cor- years of the action of two “after the cause poration penalty to recover a or following are shall accrued.” The have imposed, forfeiture or to enforce examples “special notable cases”: liability created law - 5-218(4) “An action 1. I.C. § brought must be within three or ground of fraud relief on years discovery by after the shall not “be deemed mistake” party aggrieved up- of the facts discovery, accrued until the penalty on which for- party, aggrieved by the attached, liability feiture or the constituting fraud or facts was created.” mistake.” pleaded action no situation is - limitations, I.C. tolling the statute on claims §§ I.C. 5-221 “Actions any seq.; nor is circumstance county 5-229 et against a which have to show that it is a pleaded or disclosed rejected been the board case, special inas fraud or mistake where healing the art shall be commenced of action shall cause not be deemed years within after the cause of action discovery have accrued until facts of the accrues.” R.S. c. 93. constituting the fraud or I.C. mistake. §§ Supreme The Court of Maine in Judicial 5-218(4) pari 5-201 and For materia. ruling that the action was by barred presumption discussion of the conclusive two-year statute of limitations, not an- deemed,” Employ “shall be see Swanson v. questions swered the decisive when the ac- Agency, Security ment 81 Idaho 342 P. accrued, tion but announced legislative 2d public policy and underlying the statute of agree majority,

I with that the basic limitations, in lucid language as follows: question is: did the cause of action When question “The decisive is this: When Did the cause action accrue? accrue did the action accrue? If the action act, negligent of commission of the the time accrued at the operation of the time 10, 1946, 2, 1961, July July or on the date September 1956, the statute is a bar. discovery negligent Can the of the act? If the action accrued when tubing presumption date of a deemed conclusive was July discovered in the action action coincide of the cause of of accrual seasonably brought discovery be read into with the date opinion “In our the action accrued at by judicial imposition, of limitations statute operation specifi- time imposed having been presumption such cally surgeon when the failed to remove fiat? legislative the tubing completion opera- on of the Szendey, 158 Me. 182 A. Tantish v. neg- tion. The and time nature of the factual (1962) involved a situation 2d 660 ligent charged plainly act is tied surgeon herein. In that case a similar as certainty opera- with to the fact of the tubing pa to remove inserted in a failed tion. operation back in the course of an on tient’s ap- “On the one is hand there what 5, 1956, ending with September treatment pears justice patient to be for the patient was not The October commencing right the accrual of the presence tubing in her aware action when the of the de- discovery July back until 1958. She discovered, reasonably fendant is years the action within two commenced thereafter, July on 1960. Maine’s stat and not should have been discovered part provided: of limitations ute How, says patient, may I before. * practical bring un- matter malpractice “Actions physicians say, and all others engaged wrong, that is to til the the failure

50X disclosed. substance, is under the circumstances foreign here to remove to me? known “ * * * hard- lack of relative hand, may surgeon the other “On plaintiff ship arising from urge that the statute of justice

with before not after repose de- a statute of limitations however, no two-year period, given Legislature to cut off signed appli- weight determining inus grow increasingly stale claims which properly It material cable rule. is more production age. greater fixing Legislature for the to consider necessary meet records to evidence statutory period.” progres- malpractice claims becomes sively difficult with time. more majority opinion In the case at bar the underlying states that in all theme true, may, “[t]he claims it is be

“Meritorious represents cases between of the a conflict commencing running of barred policies two basic of the law: 1. The negli- from the time of the the statute policy discouraging fostering of of stale discovery is later made. gent when act claims, policy allowing and 2. The meri- of in general, limitations how- of Statutes opportunity present torious claimants an operation ever, their cut off both Szendey, their claims.” But Tantish v. claims. and unmeritorious meritorious supra, many and the authorities therein purpose that the It is understood of well reasoning, cited disclose the that a bring repose sound is to and se- such statutes meritorious; stale, claim, though may yet be might who curity persons otherwise limitations, in- periods and that statutes of in their long for with the be faced flexibility, operate without reference to the meeting possibility of claims under and cut off and un- merits both meritorious conditions. The decision difficult more emphasized claims. meritorious It is the choice to made be here rests competing policies. repose, limitations of of statutes statutes are between require litigation be initiated which event of the “In the prescribed by legisla- the times within expiration after wrong comes legal ture. limitations, statutory period of of the law, of criminal where in- obviously hardship In areas there is paramount society legisla- hardship, possibility terests plaintiff. The prescribe not, opinion, out- deemed advisable to however, ture has does our within criminal ac- periods of time certainty in establish- the need weigh 19- be commenced. See I.C. accrues must ing time when tions §§ 502 dealing misdemeanors, disposition questions and 19-403 legal

402 of the involved other than and felonies murder. This herein. In considering adoption Court aof power recognized legislature particular superimposed doctrine to be fiat, legislation judicial in that arguments pro to enact area. State v. the various 267, ; Morris, (1959) con, 81 Idaho 340 P.2d 447 as well as ju- the decisions in our own Bilboa, 92, 38 Idaho bearing upon v. 213 P. risdictions subject, State are to (1923); Steensland, State v. judicial weight 222 P. 785 accorded more and im- portance 195 P. Idaho A.L.R. 1442 numerical'weight than the mere authority, if such there be. compensation, again workmen’s In appellate conflict the various court welfare, public area of Court has re decisions shows the existence turmoil in discovery doctrine, apply the By fused rec area under way consideration. though ognizing comparison, Lindquist Mullen, statute limita 45 Wash. tions, I.C. 72-402 I.C.A. 43- (formerly (1954) 2d P.2d 724 Long § De hardship 1202) in that attrib Campbell, works 157 Ohio St. 104 N.E.2d 177 may deny relief, mani (1952) utable the accident become while Fernandi v. Strul (akin discovery) fest until after the ex ly, A.2d 277 (1961) and N.J. piration period prescribed Morgan, of the limitations Ayers 397 Pa. A.2d proceedings opposite seek the commencement of take the Each (1959) view. recovery, nevertheless, ing decisions, court must highly informative those and well legislature be bound written, opinion. the mandate a dissenting contains Legisla situation, remedy and that “the with the appellate is the decisions of such Moody Highway Depart courts, particular ture”. State the involving v. statutes of ment, 21, (1935). jurisdictions, respective 48 P.2d 1108 Idaho their offer but deciding in or like similar slight assistance majority opinion In the it is that stated particularly appel where our own questions, general rule which disallows the ac- the. must look to its decisions and the late court it, tion has to recommend since it is little premises, as well as Code Idaho position majority “neither the of a decisions of the interpretative Ninth the jurisdictions firmly it nor based on con- Appeals considers which Court of Circuit justice.” siderations of reason or While law of this State. itself bound the opinion perhaps there is a difference as of Moreover, sundry at times legislature the just majority (see what the Anno. rule is limitations, I.C. has amended the statute of 368), approach 80 A.L.R.2d that should not seq., the finality arriving be accorded in correct 5-201 et indicates that at a which §§ Bank, 2 Ilsley Wis.2d 86 N.W.2d in & legislature has not remained static implicit Moreover, in of those and area, importance the unmindful of nor recognition decisions is the of such which similar substantively limiting the within time law. as substantive may legislation be commenced. various actions limitations, I.C. to the statute of I return majority opinion points that out I.C. legislature has Tit. c. wherein the 5-219(4), (and in as amended § discovery of ac fixed time far the thus decidedly disallowing in favor of the is) by imposi crual of various causes of action law, present recog- action. Such was the presumption, as it tion of a conclusive annotation, early the A.L.R. 1317 nized instances, notably 5-218 in certain I.C. §§ (1931), Trimming approval with cited (4), 5-222 and there is 5-237. While some Howard, (1932), 52 Idaho 16 P.2d 661 authority proposition, interpret that for therein, interpretated legisla- that is a ing when a action shall accrue cause of ture intended that statute limitations of function, legislative judicial and not should commence to from the date of run judicially by in countered view has been omission, wrongful act or rather than statutory voking of construction rule discovery injury from the date of its of (the expressio exclusio alterius unius est flowing therefrom. expression thing one exclusion Howard, supra, Trimming v. in- herein, another). Applied having made terpretative decision, Wallace Summers v. accrual of the cause of action deemed Hospital, supra, by Ninth Court Circuit dependent instances to be certain Appeals, proposition stand for the firm aggrieved party, facts damages that a cause of action to recover exception intend legislature did not such injury person, for I.C. 5-201 and §§ apply the accrual of cause 5-219(4), begins to from time of run recovery damage personal for negligent commission of the act by the act another. caused tortious injury results, from a time of and not Supreme employed Washington Court discovery. Trimming This Court reasoning Lindquist v. Mullen line Howard, supra, referring to the statute Ninth Court of supra; and the Circuit limitations, 6612(4), then C.S. now I.C. § Hospital, v. Wallace Appeals, in Summers 5-219(4), stated: said it was 276 F.2d “ * great majority rule is applicable regard to Idaho.” “equally against physicians, sur- actions employing cases the identical Other recent injuries Roybal White, result- theory geons, and dentists for 72 N.M. subject ing Peppas (1963) to and v. Marshall P.2d 250 383 504

bar relating of the statute injury cited, to The Court as favoring the discovery- person doctrine, or death caused Ayers v. Morgan, 282, 397 Pa. 154 another, wrongful neglect act or (1959), A.2d 788 City and of Miami v. [citing Supra 74 page Brooks, at (Fla.1954), 306, A.L.R.]” 70 So.2d and as de clining doctrine, to follow such Shearin v. Lloyd, 363, 246 ; N.C. 98 S.E.2d (1957) 508 “appellant’s This then Court held that cause Wilder Joseph v. Hospital, 42, St. 225 Miss. 4, July of action arose on when the (1955); So.2d 651 Lindquist Mullen, v. back,” e., broken needle was left his i. 45 Wash.2d (1954); 277 P.2d 724 De time commission the tortious act. Long Campbell, v. 157 Ohio St. 104 N.E. Hospital, supra, Summers v. Wallace (1952). 2d 177 years later, appellant decided 28 advanced The Court in Summers Wallace v. Hos- the contention that the bar of Idaho’s stat- pital, supra, regarded in effect substan- ute, 5-219(4), 5-201 I.C. and does not §§ provision 5-218(4), tive law the of I.C. § patient knows, commence run “until the grounded fraud shall not diligence in the exercise of reasonable discovery be deemed to have accrued until know, should and cause of constituting the facts the fraud. The e., disability,” i. from the time dis- Lindquist Supreme Washington Court covery. The Ninth Circuit Ap- Court of Mullen, supra, ruled to in. the same effect peals, observing after the courts of language as follows: passed upon Idaho had question, this re- ferred to California decisions which adhere “We are satisfied that legis- had the discovery doctrine. See Winkler v. principle lature intended of discov- Group, Southern California Perm. Med. ery apply tort neg- cases based on Cal.App.2d 738, 732, (1956), P.2d ligence, specifically it would have said and then cases there cited. The Court so, regard as it did stated: in fraud cases.” great authority in weight of “The Supreme New Mexico’s ruled Court like- country contrary.” is to the White, decision, Roybal inwise its recent Citing seq., Anno. 74 at 1322 et A.L.R. N.M. P.2d 250 Su- seq., Anno. A.L.R. 209 at 227 et preme Oregon Court in Wilder continuing the Court said: Haworth, Or. 213 P.2d 797 manner,

“Examination of recent refusing decisions ruled like to be won any fails to reveal argument general trend over that the Court should ignore precedent direction rule.” apply California doctrine n of amend, modify, or legislate, to discovery upon or resting as “broad con- to Court, to their ideas of what justice”; repeal laws meet said siderations of the “ * ** Supra justice’.” at Idaho authority ‘natural the constitutional of a is 606-607, 151 at 771. interpretation P.2d (cid:127)court of law limited to the it of the law as is written.” and enforcement I, Constitution, intended Art. Idaho § judicial process persons, to all afford Pennsylvania Ayers In the case of injuries remedy as the law for speedy a such supra, Morgan, concurring opinion ad- a as And where recognizes actionable. premise vances the that to adhere be sustained due action cannot of cause discovery “is malpractice cases doctrine particular of limita- a statute of the bar judicial legislation not con- but is instead upon resting a tions, argument denial of an interpretation,” legitimate stitutional a remedy is fallacious. light judiciary function of the of I, Pennsylvania’s Art. 11 of Constitu- Sec. majority opinion concedes that The tion, P.S., provides which in effect negligent act in the at bar oc- alleged case every remedy man shall a in due have 10, 1946, day opera- July curred injury person of law his or course for Billings. opinion upon Mrs. The then tion Constitution, property. I, Idaho’s Art. § theory upon change that a proceeds provision judi- is a similar intended for the of limitations should inter- statute be protection rights. cial The Su- of those posed regards when action accrues as preme Wisconsin, Court of in Reistad v. recovery damage injury of for for Manz, Wis.2d 105 N.W.2d pre- person by the conclusive inclusion of based dismissed such a contention deemed sumption, of action be that the cause upon provision a discovery, similar Wisconsin’s of accrued the date as of Constitution, W.S.A.Const., I, 9, upon Art. into in action comes and not when chose apply discovery refusing to doctrine act. of the tortious existence commission following a malpractice state- case. out, legislature pointed As heretofore Bullock, 65 Idaho ment from Moon v. sundry times sections at has amended (1944), supports con- 151 P.2d 765 this same un- limitations, left others and has statute : clusion adoption original changed from the time of however, not Rights legislature, in the Bill “The declaration in 1881. imposed as remedy yet date that courts shall afford of a ‘every person, property deemed date accrual cause or rep- injury. grounded upon personal Such change character’ does of itself ex- not part law, empower policy continuing resents on the isting courts does legislature policy which prevent should not upon be infraction the Constitution. by judicial simply altered fiat because in the This recognized exception Court also as an particulars consideration, under may it decisis, to the rule long stare stand- considered application harsh in its to mal- ing law can judicial be altered decision practice cases. grave "where (Emphasis reason exists.” supplied). The case bar not involve does point I to the action of the legis- Missouri health, affecting public determinations any lature eliminated doubt as to welfare, morals; safety any nor en- accrues, when a cause of action in the same rights guaranteed by croachment here; type of case as enacted statute Const., I, Idaho Art. as hereinbefore § provides which that a cause “shall Thus, grave shown. does exist reason * not not be deemed to accrue [until] construction the statute of limita- damage resulting therefrom is sustained tions, 5-219(4) I.C. 5-201 and involved §§ capable and is of ascertainment.” Mo.Rev. herein, departs plain phrase- from the 516.100; Tar, Thatcher v. Stat. De § ology Any change thereof. such should be (1943). Mo. S.W.2d 760 legislature. left may Until unless I.C. 5-219(4) judgment of dismissal of the trial interpose so amended as to therein con- should be court affirmed. presumption that a clusive cause of action personal growing out of a shall be

deemed to have at a accrued different date

than as of of the the time commission act, duty judiciary

tortious it is the 388 P.2d plain to apply the as of the statute words Clyde Norma DEWEY John Infants presently judiciary written. The should Dewey, Dewey, Dewey, Kathleen James determining policy enter into the field of Dewey, by Dewey, Steven Norma their legislative reserved branch Litem, Plaintiffs-Appellants, Guardian Ad government. County Oneida Fair Board Smylie, Idaho 386 P.2d 374 Roy KELLER, County Gem and Robert Worley, Defendants-Respondents. Williams, 84 Idaho Jewett No. 9241.

P.2d recognized this Court danger inherent the encroachment of Supreme Court of Idaho. judiciary upon the coordinate branches 28, 1964. Jan. government, but observed that duty interpret solemn of this Court enacted,

laws possible, and whenever

Case Details

Case Name: Billings v. Sisters of Mercy of Idaho

Court Name: Idaho Supreme Court

Date Published: Jan 24, 1964

Citation: 389 P.2d 224

Docket Number: 9382

Court Abbreviation: Idaho