Duke v. Housen

Justice, Fair Trial litigation up Standards Criminal sive has stirred unnecessary (Approved and Free Press 2-15 Draft conjecture. It would have been much more 1968). satisfactory respondent for the to have

played tapes to the news back media neither hearing after the disclosed material “We this rec- have therefore examined present of a a clear nature that “would efficacy of ord to determine probable present trial,” danger to the fairness prior measures short of restraint prejudicial nor of such doubtful effect that finding no press speech. There is by any prejudice could not “be avoided rea- that alternative measures would not have sonable alternative means.” Since was protected rights, and the Ne- Simants’ level, I would correct the done at that Supreme braska no more than Court did error mandate release. might imply that such measures not be Moreover, adequate. the record is lack-

ing in support evidence to such a find- (Footnotes

ing.” emphasis omitted

supplied.)

Likewise, in the case before us there is no

finding or required. evidence such as that

The best evidence of this is the harmless DUKE, (Defendant “Pony” Appellant actually hearing. material elicited at the below), petitioners, important matter in the us, disadvantage. before are at a terrible

They tapes do not have available the or a HOUSEN, Margaret Appellee has set aside the transcript. The court usu- (Plaintiff below). al is the adversary process which heart of No. 4811. judicial whereby function all sidés of argued. question permitted are Supreme Wyoming. Court of express Petitioners their views as to cannot Jan. 1979. prejudicial any part how of the secret hear- ing might They just trust be. are asked Rehearing Denied March 1979. right thing. that the court will do the We 590 P.2d See reason, right. had better be It is for that justifica- “. . . claim of practical

tion for a departure from the constitutional

requirement public of a trial must be tested

by a standard of inescapable strict and ne- States,

cessity.” ex Bennett v. United rel.

Rundle, 3rd Cir. F.2d petitioners,

While counsel for the under

pressure court, may agreed from the argument tapes

in oral that the could be trial, my

sealed until the view close they

that counsel if agreeable falling

contained matter within the strict

provisions Bar Association of the American

Standard, which he did not have before I any agree- would not hold him to

him..

ment, under the circumstances.

After I having transcript, received the

could not possibly party be a to a decision to empty expen-

close an treasure chest. This

337 Basin, Gish,

Robert and R. R. Bo- A. stwick, Casper, the briefs. R. R. signed Bostwick, Casper, appeared argu- in oral ment on appellant. behalf of Spence, G. L. Casper, signed the briefs and appeared argument in oral on behalf of appellee. RAPER, J., GUTHRIE,*

Before and C. THOMAS, JJ., McCLINTOCK and and J., ARMSTRONG,D. Retired.

RAPER, Chief Justice. court,

In appeal ap- before the now challenges pellant-defendant jury ver- dict judgment and district entered court against awarding appellee-plaintiff, him upon alleged neg- based grossly defendant’s ligent infection of with venereal disease, punitive compensatory dam- $1,300,000. ages Through sum of appellate challenge, defendant raises the following questions: January 1, 1979, argument, *At the time of oral while this case been he has retained in active judicial V, pursuant Wyo- was under advisement at the time a deci- to § service Art. reached, Guthrie, J., ming sion was 5-l-106(f), was Chief Jus- Constitution and § W.S.1977. J., Rooney, tice. He retired participate. from the court December did By court, 1978. order of the entered on Finally, a statute of in sexual intercourse with him. barred 1. Is the action 21, 1970, defendant morning limitations? relationship with broke off his damages excessive? 2. Are the the first time that he and informed her for assumption of risk Is the defense of disease, gonorrhea, and that venereal had or other a bar to defense it too. probably now she law? matter of recovery as a ad- error in the there reversible 4. Was trial, through presentation of vo- At Janet testimony mission of parties, it was testimony both luminous Woodenlegs? prior time established that at some 22, 1970, punitive Were the instructions on March defendant had become damages improper? probably aware that he was infected with day he visited a venereal disease for on and fundamental er- plain 6. Was there Dallas, Texas, complaining pain doctor in ror? response, discharge. and a urethral herein, we For the reasons stated detail sample examining physician took that the action ground reverse on the shall testing administered discharge for of limitations and the statute barred penicillin, telling fast-acting large dosage of not consider the other issues. day for the next defendant to return the 1970, plaintiff living, April, In early returned on test When defendant results. college part-time in working, going to 23, 1970, gonor- March the test results April area. On 4 of D.C. Washington, larger positive, a having rhea been found by her brother was introduced year that she was ad- longer-acting penicillin dose of a defendant; night the same and and on to to was advised ministered and defendant 5, following dinner morning April early see his own treatment. doctor for further drinking, en- moderate dancing plus and for by plane Defendant then left New with defendant gaged in sexual intercourse York, day, March arriving same pickup his truck. On in the front seat of he contact- immediately upon arrival 8th, response in partially least April at physician, ed his own who after an external convincing profes- and defendant’s sudden examination, no stated that he could find marry, plaintiff desire to sions of love and gonorrhea” “clinical evidence of —defendant airport met the LaGuardia defendant at discharge. had no current urethral On traveled subsequently New York and previous treatment and this basis of the Denver, York to truck with him from New information, asserted at current defendant Colorado, off in acts of engaging and as of his first that trial that it was his belief along the with defendant sexual intercourse on the sexual contact with the Denver, defendant, reaching way. Upon 4-6, 1970, infection with his night April having plaintiff, lodged her lost interest gonorrhea had been cured. his home in in a local hotel and left for by defendant Plaintiff, Meeteetse, Plaintiff, after con- Wyoming. being after told 21, 1970, probably tacting waiting April her and for him to she had brother that arrive, him and should subsequently gonorrhea traveled to Meeteetse contracted concerning doctor, his and confronted defendant see a left New York for Wash- result, and, following April agreed ington, day, that behavior. As a D.C. accompany plaintiff personal physician and visited her who defendant would gonor- Washington, through her brother D.C. and a smear test confirmed that back to apologize family; yet arriving present. response after rhea was to medi- cation, discussing infection with what her Washington plaintiff’s and the situation family, plaintiff physician her for some reason as a “classic case described gonorrhea” which is clear nor was arrested totally probably asymptomatic neither elucidation, 14, 1970, problems capable of the de- but more serious accompanied May January, York, occupying develop. Beginning a fendant to New there were to pain hotel room in her lower together engaged once more noticed a and March, 1973, right “(7) Defendant, be- side had That the at the times places aforesaid, severe as and require come so and constant knowing and he was infected with medical attention. After various external ve- communicable disease, nereal did provided negli- medical tests and then and there negative results gently, carelessly, ineffective, and with utter and medication proved antibiotic wanton disregard rights for the major performed exploratory surgery was Plaintiff, expose and transmit result, in July, 1973. As a plaintiff’s physi- Plaintiff an infectious venereal disease. cian the gonorrhea found because of “(8) infection, That possibly proximate and other as a result of the related second- negligent ary well, infections as sear tissue adhesions careless acts Defend- ant, aforesaid, suf- as the Plaintiff formed within number areas fered damages, and will continue to suf- appellee’s He testified lower abdomen. damages fer from her humiliation and although (loosened lysed he had disgrace aforesaid, damages as in the sum detached by surgical procedures) the adhe- $100,000.00. sions, relieving temporarily thus somewhat prays judg- “WHEREFORE pain, severe because of nature ment against the defendant follows: involved, the sear tissue new adhesions pain “(a) form eventually would would general damages For her medi- very probably again expenses, disgrace return cal pain, suffering, continue $100,000.00; this cyclical manner for the humiliation remainder sum plaintiff’s life. He further advised that “(b) punitive damages For sum involved, because of the scarring $100,000.00; to bear ability greatly children had been “(c) For costs her ac- incurred in this reduced. tion; and “(d) For such other and further relief This case is first lawsuit filed just prop- Court seem the plaintiff against defendant. The record er.” complaint discloses that on Margaret

was filed in a case entitled Hous- complaint judge That is the trial by noticed Duke, Jr., en Angier George v. Biddle St. in two of case was later his orders. That 8557, Court, Civil No. in the District Fifth dismissed. District, County, Wyoming, Judicial Park 19, Plaintiff April this new action on filed relationship which recited the between 1974, hospital expenses, ex- seeking doctor’s plaintiff and defendant with dates and loss, penses, wage expense, future medical plaintiff’s testimony events with consistent suffering, and damages pain well as for case, following: in the instant the including addition, present on and future. In based “(6) That the Plaintiff did thereafter allegation guilty an was of that defendant learn that she had contracted from De- when with gross negligence he infected her disease, as a of fendant venereal result gonorrhea, plaintiff requested $1 million subjected which the Plaintiff damages. was the exemplary By interrogatory, expense medical for the care and jury treat- been found that defendant had infect- thereof, together great ment pain, gonorrhea ed with at the of his rela- time suffering, disgrace plaintiff April and humiliation in the tions with between 4 and 21, 1970;1 of eyes family by her and friends. and verdict April awarded Interrogatories jury gonorrhea? had had the Defendant or had and its answers were: /s/No purported significance Interrogatory No. The of “Interrogatory you the No. 1: Do find that 19, April that on filed her action gonorrhea Defendant dur- was infected with plain- produced that evidence Defendant April ing April through the April he had tiff was informed on 21, 1970? /s/Yes would, jury, gonorrhea. by If believed the law, you it was as a foreclose “Interrogatory the theorized matter 2: Do find that No. year Wyoming’s under four 1970 that Plaintiff was advised extent, $300,000.00 compensatory injury, dam- its the amount of ture involved, $1,000,000:00 exemplary pu- or social ages, money damages and considera- tions, appeal vari- and the emotional the facts damages. Following nitive denial of pass background. motions, appeal herein have must posttrial ous significant only are filed. circumstances they may bearing in re- By of both answer filed way arose, and when arose cause of action as well as sponse plaintiff’s complaint pursuing for expired time trial, de- motions after prior, during and remedy. applicable judicial alleged strongly argued fendant opinion in this refer Wherever we upon applicable statutes based circumstances, dates, such refer- places, law, plaintiff’s cause of action had been entirely from evi- ence will be derived time and her com- passage barred undisputed plaintiff, facts dence Rule plaint should therefore be dismissed. jury interrogatories pro- answers of the 8(c), requires that statute of W.R.C.P. disregard any pounded to them. We will specifically limitations be set forth as evidence of the defendant conflict. response, trial affirmative defense. question There therefore left judge plaintiff’s ruled that scar inasmuch law to decide. We and will not cannot until a adhesions had not been discovered decide questions of fact. date much later the infection than when occurred, itself applicable peri- time very At the foundation purposes od for was to limitation against claim principles defendant lie computed discovery negligently the law of One who ex tort. adhesions; and assertion was defendant’s contagious poses an infectious another to thus denied. disease, person thereby which such other contracts, damages can be held liable long Statutes of limitation have Kuklo, 1953, his 26 N.J. actions. Earle part jurisprudence been (tuberculosis); Super. 98 A.2d 107 Ed States, United all its and the State states Lamb, wards v. 69 N.H. A. Wyoming. They devices to pragmatic are Kliegel (infection wound); v. Ait from a litigation save courts from claim stale ken, 1896, (whoop N.W. 67 94 Wis. spare having citizens from to defend when Butcher, 1910, ing cough); Franklin v. faded, memories have witnesses are una Mo.App. (smallpox). 129 S.W. 428 Yet disappearance vailable death or and evi plaintiff, while claim raised basic are dence lost. Statutes of limitation one, tort, albeit an unusual sounds in arbitrary by very their nature and do not pursuance Wyoming circumstance of its unjust just discriminate between the Since, unique. is somewhat as the evidence claim. are They judicially not made but points up, was there no sexual contact be represent legislative public policy con Wyoming, tween defendant trolling right litigate. the to Chase Securi state, simple any nor tortious in this Donaldson, 1945, ties 325 Corporation v. be logic reveals that there could no tortious 304, 1628; 1137, U.S. 65 89 L.Ed. reh. S.Ct. conduct, plaintiff’s of negligent exposure no 896, den. 89 L.Ed. U.S. S.Ct. this, body to the disease defendant against even operate The statutes question no that forum state. There can be the most of claims and courts meritorious only be could cause of action application. have no to right deny their having found as arisen elsewhere. Estate, 1949, re Smith’s 240 Iowa con up N.W.2d 8 A.L.R.2d 640. When An tort made of several actionable is limitations, sidering the statute the na- of elements. A cause action must arise of i-3-105, W.S.1977, infra. We need consider what its ef- defendant defendant. not § might telling it himself denied at time that fect have been because would raise question. gonorrhea. purported- he had an The information academic ly supplied plaintiff by was to friends of the Prosser, Torts, 4th A “cause limitations start. of before action” is the fact or Ed., 143-44, steps: the outlines pp. combination of § give facts which rise to a see, simply “suit”, shall

“Negligence, as we is being latter a proceeding to en of one But cause kind of conduct. force a right. State ex rel. Merritt Oil from upon negligence, action founded Corporation v. District Court of Sixth Judi follow, requires more will liability cial District In and For Converse County, than The traditional formula conduct. 1932, 44 Wyo. 437, 13 568, 570, P.2d cert. necessary for the elements to such a den. U.S. 53 S.Ct. 77 L.Ed. 575. briefly of be may cause action stated This very court recently in Cantonwine v. follows: Fehling, Wyo.1978, 582 P.2d promis A duty, obligation, recognized “1. sory case, note approval with quoted law, requiring the actor con- Martin, 1907, Bruner v. 76 Kan. 93 P. conduct, form a certain standard of 165, 166: against of protection others unreason- “ * * * able risks. But the time when the cause A part “2. failure on his to conform to of action arises determines also the place required. These ele- standard two arises; it for when that occurs go up ments to make what the courts which is action, place cause of usually negligence; have called but where it occurs is where the frequently term is quite applied to the ” * * * cause of action arises. that may second alone. Thus it said but is not negligent, the defendant was The heavy weight authority in interstate duty no liable he under because was tort cases such as here with elements in the plaintiff not to be. different jurisdictions, is that the law the A close connec- “3. reasonable causal place where the plaintiff sustains injury to tion the result- between conduct and her person controls. Restatement of Con- ing commonly This is what injury. flict Laws, 377; Harper and James, cause,’ ‘legal ‘proximate known as 30.4, p. cause.’ resulting damage “4. Actual loss or law, At common the limitation interests of another. Since fori, jurisdiction, general the lex forum for negligence developed chiefly out ly the time within which causes controlled case, the old form action on regardless pursued, action had to be action, rule retained the its itself all ele fact that cause proof damage an part essential outside the forum ments have accrued the plaintiff’s damages, case. Nominal jurisdiction. limitation of Only right, vindicate a technical cannot be re- jurisdiction foreign action statute of the action, negligence where no covered be deemed sub could which the cause arose actual loss has occurred. The threat of would procedural law rather than stantive realized, harm, future not is not yet by the forum applied the foreign statute be enough. Negligent conduct itself Co., 1975, inter- court. v. B. F. Goodrich such interference Parish 570; large ests of the world at there Ehrenz 235 N.W.2d Mich. it, or to free any right complain to of be (1962); Ver Conflict of Laws 161 weig, § it, from case some indi- except the of non, the Conflict of Limitation in Statutes have suffered. vidual whose interests Laws; Statutes, Rocky 32 Borrowing of (1960). In order to avoid Mtn.L.Rev. 287 of limita- statute the “It follows with problems the and associated confusion a against run to begin tions does not foreign a attempting to determine when has damage some until negligence action substantive limitation of action statute was occurred. states, includ procedural, majority or a of (Footnotes omitted.) are referred ing what Wyoming, enacted 342 1-3-117, by has erased legislature by been the enact- “borrowing” statutes. Section

as W.S.1977,2 controlling fixing we find to be the “borrowing” ment the clear: simple this is and regard, of this state to be the statute of limitations country jurisdiction or the which the

“If the laws the state same that of the explained where the cause of action arose action is cause That of action arose. barred, also in this state.” it is barred Am.Jur.2d, (67) the su- the next section jur- law pra, quote. The limitations of the posi an unusual takes of action arises isdiction in which cause Wyoming, tion that since the case is tried the state has been ever since law of this and law Wyoming must under as a be tried though a defendant is W.S.1977,3 days, even 1-3-105, territorial whole, pre including § court, place years Wyoming of four scribing period properly of limitation before a accrues,” pertain “after the cause of where served with action he be personally ing arising Wyoming. action process causes of found. remedy and a statutory then that under She asserts this case we take in is entire- The position section, she was infect since she discovered past utterances ly consistent with the 22, 1970,” gonorrhea with “around ed causes of action respect court with brought within the timely her action was Wyoming. It arising outside state period by filing her Wyoming year four state, in of this was law declared to be the 19, complaint April 1974. She elects to 29, 302, 1954, Ball, 269 P.2d Wyo. Ball v. 1-3-117, borrowing ignore the § 304, Conflict of quoting from 15 C.J.S. relies Union supra. upon She then Stock 12, (now p. Laws 15A C.J.S. Conflict § Omaha, yards Bank of South Nebraska Nat. 12(2) 453-455): pp. of Laws § 619; Maika, 1907, 141, Wyo. 92 P. and v. “ gen- ‘It is established as a thoroughly Co., Riley v. Pacific Union Railroad U.S.D. delicti, eral rule that the loci or the lex 391, C.Wyo.1950, F.Supp. aff’d. 10th Cir. place law wrong the tort where or 1950, support 765 to 51 Am. 182 F.2d committed, has gov- been law that is the Actions, 66, Jur.2d, p. Limitation of § respect to applied is to be with erns and follows: statement as “ * * * or the phases torts substantive the statutes of limitation of therefor, actions determines brought place where the action is question not an act or of whether or enforced, sought be remedy right of or rise to a gives omission action not the contract those of the ” * * tort, V liability civil arose, made, right in tort or the resides, domicil one with legis- in tune That likewise rule is persons other of the affected its announced in lative policy of state control in the event of a litigation, Cope statute. “borrowing” limitations ” * * * conflict of laws. 1340, Anderson, S.Ct. U.S. points out that 91 L.Ed. argument have that rule in the We no borrowing state’s purpose bottom of a us but we no conflict of line before if Any require courts to bar suits applicable. laws to make it conflict statute is to its change “(a) 2. The since other than for the recov- enacted Ninth Civil actions Territory Legislative Assembly Wyo- ery property brought real can ming part following periods of the Code Procedure of Civil within the after the cause Chapter Wyoming § Session Laws of of action accrues: Territory, 1886, change last been to “territory” provision word of the years, “(iv) (4) for: four Within Since, R.S.1887, appeared “state.” it has as: 2379; R.S.1899, 4308; 3464; C.S.1910, § § C.S.1920, § “(C) rights plaintiff, An 5577; R.S.1931, 89^19; § § C.S. arising enu- not herein on contract 3-520, W.S.1957, 1-25; Laws merated; and ch. 1.§ 1-3-105, W.S.1977, pertinent part 3. Section provides: right already expired to sue had when wrongfully put forces in motion jurisdiction crucial another where the com- produce injury. Heyden Schwartz v. New right bination of giving circumstances port Corp., 1963, 212, Chem. 12 N.Y.2d place, sue had taken the existence of 142, 714, 188 N.Y.S.2d N.E.2d A.L.R.3d party judicial which right affords a 814, 808, 1697, 10 cert. den. 83 S.Ct. U.S. interference in his behalf. (substance L.Ed.2d 1032 later learned to be dangerous sinuses; injected argues, also and the trial

Plaintiff discovered after limi cause of cancer judge held, so the statute of limitations run; eye tation October, did lost as a not commence to run until result; 1973, resulting barred). single neg adhesions A act of ligence infection it is were discovered because of action creates one cause damages therefrom for which the are arising years later from that damage act of sought.4 position That accepted not the negligence new does not create a cause of rule. The rule well very correct summa Despatch action. v. Merchants Schmidt Am.Jur.2d, rized in 51 Limitation of Ac Transportation Company, 270 N.Y. tions, 135, p. 704: (pneumo 200 N.E. 104 A.L.R. 450 n “ * * * rule, general As a where an coniosis). although injury, slight, is sustained in

consequence wrongful of the act of an- The statute of limitations attaches other, law remedy and the affords a when there been of the notice invasion therefor, the statute of limitations at- legal of a right plaintiff, even though taches at once. It is required not that all consequences notice of not its does materi damages resulting from act shall City alize until later. Cristiani v. Saraso time, have been sustained at that ta, Fla.1953, (child struck vio 65 So.2d postponed running of the statute is not another, lently by negligence about head by the fact that the actual or substantial developing blindness after as a result stat damages a later do not occur until date. run; denied). also, ute had recovery See regarded ground The act as the itself Fla.1976, 333 Reynolds, Nardone So.2d v. action, and is severable legally not Lester, 1946, citing Dowling Cristiani. * * * ”5 consequences. from its 74 Ga.App. S.E.2d defend ant negligent serving restauranteur was supported by

The doctrine is well containing plaintiff, food a rock to authority. voluminous We have selected tooth, she broken resulting some bit down on in a examples involving physical injury. By immediately various the rest ways expressions they illus of which was extract trate the A ed with replaced rule. cause of action accrues a dentist and a denture thereof, judge’s Complaint, paragraph full text of the trial order there is no regard question dividing damages the run- but what the knew immedi- to control Plaintiff ately ning question after limitations: the incidents in that she infected, had been and therefore the Court MATTER, having “THIS on to be come any recovery finds that insofar as for humili- heard the Court on a call be- conference ation, alleged etc for infliction of the parties, having tween the the Court heard the disease, of the is barred reason Statute of arguments fully being of counsel and advised Limitations. premises, respect in the finds BY “IT THE IS THEREFORE ORDERED application Statute of Limitations COURT: case, as follows: “1. the Statute did not That of Limitations question “1. That there is no in the begin to run insofar as adhesions were Wyoming pertain- Court’s mind but what law concerned, 1973; until ing to the Statute Limitations is based humiliation, recovery “2. That etc. for upon discovery injury; disease, alleged infliction is barred Therefore, “2. finds that if the Court reason Statute Limitations.” statements, supports evidence said the Stat- begin ute did to run insofar the adhe- 4§ See also enti- Anno. 4 A.L.R.3d 1973; sions were until When concerned tled of Limitations: Cause of “Statute original reviewing Against “3. That Action Arises Action Manufacturer present Injury Causing which was or Seller of Death.” filed 1971 and Product 344 4-5, adjoin April Virginia. The 1970. State of adjoining tooth. to an attached loose, devel soreness ing tooth in time came Tuxedo, York. 7-8, New April 1970. developed phys a related oped and Erie, 8-9, Pennsylvania. 1970. April person. The condition, injury an to her ical 9-10, Iowa. of April 1970. State applica brought within action was not 10-11, Nebraska. Ogallala, April 1970. the date the limitation from ble of City, 20-21, New 1970. New York April held that the new It was tooth was broken. York. complications arising from injury extent of is no evidence intercourse There of sexual running anew. the statute did not start We Wyoming. taking place in the of State law in Nivens Louisiana Applying juris- for a must therefore look elsewhere Inc., 1975, Co., 5th Cir. Signal v. and Gas Oil diction in While it is which the cause arose. amend., 1019, den., 523 F.2d 520 F.2d reh. perpe- perhaps the defendant unusual that 912, 1509, 1382, 96 cert. den. 425 U.S. S.Ct. injury caused negligent acts and trated his 763, struck his head on

47 L.Ed.2d in several different suffering pain, plaintiff’s body dizzi galley cabinet door ness, later swelling, discover spot red give appearance an of states and which after ed to be a skull fracture with serious rules of settled complexity, application an injuries The held that effects. Court involved jurisdictions of tort law in the the later found could not bifurcated obscurity. suggestion away any clears subject of another complications made the action statute The limitation period. Where delayed prescriptive in which the foreign jurisdiction negligent coincidence of the act and by the applied question cause in arose occurs, the cause of damage fact of some whether or not being applicable irregardless action comes into forum court run, even begins statute of limitations could be characteriz foreign limitation damage is unknown or though the ultimate Thus, in procedural. ed as substantive or v. Dow Chemical unpredictable. Dalton instances, if a cause of almost all Co., 1968, 147, 580 Minn. 158 N.W.2d 280 jurisdiction in action is time-barred in the to chemical (poisoning exposure arose, it which the cause of action would be solvent; barred).6 To cleaning paraplegic time in the forum passage barred allow successive actions as additional dam court as well. a rule not clears Such nullify the statutes of ages arise would up prob conflict procedural substantive very purpose. their limitation and defeat lem, possibility but eliminates as well jury found as a fact that defend- for a favorable forum plaintiff shopping gonorrhea during the ant was the bearer of Long claim. v. which to revive a dead 21, 4, period April 1970 to 1970. The 343, Pettinato, 1975, 230 N.W.2d Mich. 394 by the de- plaintiff’s testimony, admitted 550; Law, Ehrenzweig, Conflicts fendant, intercourse between that sexual Rocky (1962); Vernon, Mtn.L.Rev. supra, 32 took and defendant importance 287. It thus becomes of acute jurisdictions in the dates and in other state itinerary specifically deter- accordance follows: in the at bar to situation Arnett, Ky.1972, (Injury Sanchez v. v. 6. See also to the same effect: S.W.2d known; 1974, fully Wade, Tex.Civ.App. not until S.W.2d 812. aware extent of condition, years during explorato (Once patient several later discovered cause of action knows barred.) accrues, ry surgery; regardless ignorance Matthieu v. Piedmont of extent and 212, disease.) Company, permanency 269 N.C. Christian v. Daniell Natural Gas Co., Inc., (Cause springs Battery Manufacturing La.App. S.E.2d 336. of action into exist damage; subsequent damage (Plaintiff he was ence with first 279 So.2d 214. aware that treated; action). injured complications v. does not start a new cause of Street and was later postpone starting limitations.) Mining Corporation, 185 Va. did not Ran Consumers Sowinski, (Plaintiff N.J.Super. kin 39 S.E.2d A.L.R. (Plaintiff jaw injured by died A.2d 849. knew contracted silicosis den discovered 1942; post tooth; running not tist at time of extraction of disease of statute cause ac from poned crued; damage knowledge did lack of of extent of fact that substantial run.) limitations.) does occur until after not toll the statute of Caudill mine, port Corporation, of Chemical purposes, supra, for limitation actions where and cause of action when'plaintiff’s statute of limitations commences to run at making (in arose. In such a determination the injury produced personal time is period, upon cases) based a borrowed limitational damage and is injury there to the jurisdictions having borrowing all stat- in of the body. structure holds Schwartz that ute, exception Ohio, is only with the of not complete the cause of action is when the utilized, specific the but prescriptive of the body by injury place invasion takes all of its accouterments as well whether “independently of actual any pecuniary the form of statutory provisions additional The damage.” injury is considered a tres- Ester, or interpretive judicial decisions. pass upon person injured the the plain- of Borrowing of Limitation Con- Statutes and tiff. Laws, of The

flict 15 U. of Fla.Law Rev. court in Schwartz strongly re Rook, lied on (1962). As court in Devine v. Schmidt the v. Merchants Despatch 932, 935, Mo.App.1958, very Transportation S.W.2d has Company, supra, the court aptly the stated: latter case at 200 stating N.E. 827: “That “But when does such not mean that the cause of [limitational] borrowed, bodily injured so not wrenched out action accrues per- it is son setting, along of its own but taken it knows or should know that the injury are own state has injury the court decisions of its occurred. The occurs when it, there is a interpret apply wrongful personal and and of invasion or companion property rights which limit and re- then statutes and the cause of strict its This we think is the accrues. operation. Except cases of fraud (Bracketed general provides material add- statute expressly law.” oth- erwise, ed, omitted.) the statutory period footnote of limitations Thus, begins to run from the time when applying “borrowed” we liabili- ty wrong must consider has arisen even though not the borrowed limita- injured party itself, may ignorant tion of action statute be any but also applicable existence or tolling wrong injury. other as well statutes Conse- quential pertinent effect, plain- damages may court eases. flow later from an tiff’s injury slight cause must viewed as too at be if filed to be noticed the time state where under the laws of that state a inflicted. No new cause of action action accrued.7 consequential cause of accrues when such damages consequential arise. So far as such dam- We find and hold that a cause of ages may anticipated, reasonably they action arose in state New York on of may recovery be included in a for the 8,1970 21,1970. April New York original injury, even at though the time City, New York was the where the they the trial may yet exist. defendant committed his second and last damage When may substantial result acts of negligence communicating disease from any wrong affecting person the plaintiff. In New York it long property another, a cause of action for been the rule negli classic actions of such wrong immediately accrues.” gence, damage gist [Cita- and essence of a tion of cases plaintiff’s cause, omitted.] Heyden New- Schwartz opinion, remaining During course of may upon the court call counsel to aid it in quoting citing the statutes we shall be from obtaining such information.” allowed law of other states. As judge for defendant the trial Counsel informed judicial Wyoming, notice State we shall take of his reliance of limitation on the statutes 1-12-302, Section W.S. those considered. are those other states. set out The statutes we 1977: applicable herein occurrence at the time “Every judicial court of this state shall take Wyoming State Law Li- and are found in the notice of the common law and statutes brary, Cheyenne. state, every territory jurisdiction and other the United States.” 1-12-303, Section W.S. 1977: “The foreign court inform itself of laws in proper, such manner as it deems Limitation, must rule The such cause would also apply “We here. complete when be time-barred.” court cited Schwartz alleged negligence defendant standing and Schmidt as for that rule. caused to inhale deleteri- statutory period Where more than injury, For including ous dust. all (onset years of three limitations resulting the defendant was damages, based cancer) lapsed, of on had an action the lungs then liable. The disease of was Karp negligence was barred. as a cause consequence injury. a Its result of that Company, Liggett Tobacco Myers & or, delayed, perhaps, even might be New A.D.2d 336 N.Y.S.2d averted; nevertheless, good fortune the retreated York never jurisprudence has naturally, resulted if inevita- disease negli- ordinary that position in the bly, plain- from a created the condition gently case. caused disease the defendant’s al- body through tiff’s applied The to this Schmidt doctrine leged wrong. be doubted that It cannot arose of action a cause means that begun an plaintiff might the had sexual New when the defendant York against immediately the after defendant plaintiff the at the Motel intercourse with inhaled the which caused the dis- he dust Tuxedo, in the York Mountains New on challenge ease. No could have successful 8,1970. morning April the of At that time interposed ground been on the that the body plaintiff he into the introduced brought action was prematurely because known as pus producing infectious bacteria time it at the was commenced no serious gon- gonococci, of which causes the disease damage yet had plaintiff devel- question but that un- orrhea. There is no In that oped. plaintiff action the could der defendant was the law of New York the he damages recover all could show guilty negligence and of a tortious act of had resulted or result would therefrom. placement the plaintiff injured by the effect, asking was plaintiff the this court Then to that the limi- her of deleterious matter. statutory period body hold of 21, 1970, time the begins only morning April tation from the that the the defend- of plaintiff had assurance that ant York City, reasonable New again once at a hotel in damage serious resulted or would act New tortious repeated York past pro- The injury. result from statute again once in the same fashion introduced language unambiguous vides in that the the bacteria body plaintiff into the of of period begins of to run at the limitation gonococci. begin when right

moment an action The must be applied accrues. same test It must be realized that entire challenge to a that the action is affair stale between and defendant em challenge so, to a that the action been only period has braced a of two weeks about brought prematurely.” involved, period of it limitations would not make much difference whether See also Thornton v. Roosevelt Hospital, York, rule of New the rule stat 59 A.D.2d 398 N.Y.S.2d starting exposure ute date of last injected wherein a substance was into opinion or the mentioned plaintiff’s decedent, allegedly resulting in elsewhere Wyom rule discovery of which we use the onset court of held that cancer. ing,8 applied. choice; were It is time of of the decedent’s not our invasion “[t]he time, we body, began accept jurisdiction and not must any later law of the period to be the Statute of where We must measured the cause arose.9 therefore (when 8. When a cause of action arises the State and cause 263 P. 703 period Wyoming, begins apparent). of limitations became run when the knows or has reason Anno, entitled, Generally, know the a existence of cause action. Ban- limita- “When see Dayton, Wyo.1970, period begins against ner v. Town tion cause ac- P.2d 300 to run disease,” discovered); (when contracting tion was Town or claim for Coun- Ladd, 1928, Wyo. cil of Town of Hudson v. A.L.R.2d and later case service. appears barred, New it conclude that since York was the to be and defendant exposure exposure, as Schmidt’s so In response, plaintiff has asserted. has pneumoconiosis breathing delete- urged that because defendant’s absence causing dust cause of action injury, rious his following from New York tortious con- when defendant left also arose in New York duct, applicable limitation gonococci body. It plaintiff’s in the 207.11 been tolled. N.Y. CPLR § gonorrhea reasonable inference that since We, Supreme as did New York Court in day was found to exist in after case, plain- a recent with the disagree must defendant, her final relations with the 1977, 56 Whitmoyer, Burwell v. tiff. likewise in New York. con- Having existed A.D.2d 513: N.Y.S.2d cluded cause action accrued in “We pass now contention York, “borrowing” State New stat- the statute of limitations was tolled ute Wyoming controls the determination pursuant CPLR While sec- to that plaintiff’s of whether or not action has been tion provide tolling does for of the the law, barred. Under New York an action to statute where a is out defendant recover for damages personal injury, unless state for more than months the four after involving specific certain causes of action accrued, provides action has 3 subdivision here, be relevant must commenced jurisdiction for an the exception where within three years.10 over the obtained without person can be Plaintiff’s cause of action accrued summons to him personal delivery of the 21,1970, in New York latest on at the Although within defendant the state. * * * the date last sexual contact between the state from the absented himself parties. any limitations, for the moment Disregarding opinion, in our statute of possibly applicable (citation other was not 207 tolled CPLR 19, until April omitted). action not been filed having during at all times Plaintiff exposure N.Y. The rule of last ing negligence CPLR 207: § of continu- causing is disease to another “If, against when a cause of action accrues commonly accepted to be that the occurs state, person, a ishe without the the time day exposure. repeating on the last After within which the action must be commenced principles the first not arise unless there has been first a that a of action does cause computed be shall from the time comes he negligent If, or to into returns the state. after cause a injury, slight act and second an actual however against person, of action has accrued a he therefrom, proximately resulting Biglioli court departs from state and remains continu- 1957, Corporation, v. Durotest 44 N.J. ously four absent therefrom for months or 93, 727, Super. 129 A.2d a held that where more, or he resides the state within under a exposed period is to over a of time person false name which is unknown to the beryllium single there is but a indivisible con- action, to entitled commence the the time tinuing wrong, running with the from un- his absence or residence the state within dust, exposure the time of the last irre- part der such a false name is not a spective berylliosis disease within which the time menced. This action must be com- consequential damages discovered or result. apply: section does not present body. in the designation, “1. there is in while force Wright The same rule was followed in v. Carter voluntary law, involuntary, pursuant made or Products, Cir., 53, 2nd 244 F.2d de- person of a a summons whom negligently fendant concocted the deodorant delivered ef- within the with the same state daily Arrid which used over a state; personally fect as if served within the developed time the statute commenced to application. dermatitis. The court held or as of last run foreign corporation has one or “2. while a persons more in the officers other state Rules, 10. New York Law and Civil Practice against corporation whom summons such 214—Actions to be commenced within three § served; may be years: person jurisdiction “3. while over following “The must actions be com- per- defendant can be without obtained years: menced within three delivery of within sonal the summons to him the state.” per- damages “5. an recover 215;” injury except provided sonal as in § 348 thus clear It would seem that had have obtained period could statutory 318; (CPLR against defendant defendant

jurisdiction over this action brought 2).” 302, [a], . 308, par. accrual, subd. [5]; York, subd. the situs of its New state, her statutes authorities Arbotowicz, 1977, 41 well, v. See Yarusso limi- be barred. The cause of action would 968, 362 N.E.2d 516, N.Y.S.2d N.Y.2d 393 York, period having run New tational McClain, 1972, 600; 40 A.D.2d v. Goodemote this, state, well. forum has run 79; 22, Chapman, Dobkin v. N.Y.S.2d 1-3-117, W.S.1977, supra. 21 N.Y.2d N.Y.S.2d Sanders, 451; N.E.2d Fishman passing observe in while there We N.E.2d N.Y.S.2d N.Y.2d ruling judge no the trial here Zimmerman, 1966, 326; 26 A.D.2d Massik v. foreign specifically applies by reference provi- 373. Under N.Y.S.2d limitations, impres- the distinct statute of defendant, sions of N.Y. CPLR § court’s particularly appears, sion non-domiciliary state although a order, the statute of New footnote York, personal subject to the New was still alive as keep the case applied York was jurisdiction of that state based of the courts first 1973 and appearing the adhesions act within upon his commission of tortious of limita- consequences. The statute their itself. N.Y. CPLR the confines of the state not the of action goes tions to the cause 302.12 which arise as damages various elements of jurisdic- subject to court’s Once found Damages excluded injury. a result of the tion, have been process could service of Wyo- within judge the trial were by his notwithstanding upon made defendant urged year by plaintiff ming four limitation state. N.Y. CPLR absence from applicable. 308.13 § “ * * * In de jurisdictions other negli- the alleged Because * * * of negligence, fendant committed his acts gence was a tor- defendant the cause of is likewise either barred action State, per- tious act within the committed or by a statute of limitations no cause ac- jurisdiction sonal could have been action there arose. The defendant’s first by ser- quired under CPLR 4-5, 1970, of negligence, installment Florida, vice in after defendant Virginia. Arguably, in the State of was there, any transferred his residence state, the cause of the law under of that made in manner service can be in which there; Arbotowicz, if indeed su- action could have arisen State.” Yarusso did, by at that state’s 362 N.E.2d it is barred pra, at likewise N.Y.S.2d appropriate Virginia, 602. limitations. court, upon 302(a)(2) in such “5. manner as the mo- 12. N.Y. § CPLR notice, directs, tion if is im- without service jurisdiction by non- “§ Personal acts of one, practicable paragraphs under two domiciliaries four of this section.” any “(a) arising As of action from to a cause § N.Y. CPLR 313: section, a of the acts enumerated in this per- giving 313. Service without the “§ state personal jurisdiction court exercise over jurisdiction sonal any nondomiciliary, or his or admin- executor person subject “A domiciled in the state istrator, or person through agent: or who jurisdiction courts state of the of the under section or or 301 or his executor state, “2. act commits a tortious within administrator, may be served with the sum- except as to a cause of for defamation state, mons in the without the same manner * act; arising of character from the or state, by any as service is within the made person make authorized to service within 308(5): 13. N.Y. CPLR § by any state who is or a resident of the state per- upon person “§ son Personal natural service make authorized to service state, territory, possession of the laws country upon person shall “Personal service natural in which service is made or by any following be made methods: duly qualified barrister, attorney, solicitor, equivalent jurisdiction.” in such injuries period personal provision appears codify limitational That the tradi- Virginia rule of case law. Hawks v. tional years,14 herein is two the kind sustained DeHart, 1966, 206 Va. S.E.2d 187. then and though even the defendant did not In Hawks the court made it clear that: reside in he was still Virginia, does not now Virginia “We are committed in to the subject personal jurisdiction to the of its actions the personal injury rule that in be- through long courts its arm statutes begins to right limitation on the to sue cause tortious conduct with- allegedly of his run and not wrong when the is done in the state.15 when the that he has discovers removed Virginia legislature damaged.” been determining complexities some of the The court then went on cite Street v. when the of limitation of that state statutes Consumers footnote Mining Corp., supra, start enactment of the Code to run some resemblance to bearing disease case Virginia, 8.01—230: § there the case before us now. The every “In action for which a limitation the dis- breathed silica dust and contracted period prescribed, the cause of action to the exposure ease silicosis. His last pre- shall be deemed to accrue dust was 1936. It was there held that the shall begin scribed limitation began upon to run the date of his run the date the is sustained exposure. last person, the case of There is no in this testimony or evidence duty the breach of contract or occurs in case as to exact time the damage property disease. exposure infected to defendant’s discovered, resulting damage when the We shall assume for the moment that she except sought solely where the relief in- instantly upon was infected the sexual provided equitable or otherwise park- Virginia in the taking place tercourse 8.01-233, under subsection C case, read- ing a strict lot. If that was 8.01-245, 8.01-249, or other 8.01-230, 8.01-250 su- §§ ing Virginia (Other referred to statute.” sections pra, cause of action arose indicates that the 4-5, application.) Virginia April have no in 1970. On the party, process may Virginia pertinent or or notice 14. in nonresident § Code of 8.01-243 part: any agent person in the be served on of such statute, county city provided by in in he re- or this State “A. Unless otherwise every injuries, personal Secretary sides or on the whatever of the Common- theory recovery, except provided Virginia, in wealth of to in hereinafter referred hereof, years brought who, ‘Secretary,’ B shall be within two this section as the for this purpose, statutory next after the cause of action shall have ac- shall be deemed to be the crued. agent person. of such process such or notice on the “B. Service of Secretary by leaving copy shall be made Virginia pertinent 15. Code of 8.01-328.1 in § notice, together process fee or with the part: prescribed hands of the 14.1-103 § may personal jurisdic- “A. A court exercise Secretary city or in his office in the of Rich- person, directly by tion an over a who acts or mond, Virginia, and such service shall be agent, arising as to a cause of action from the upon nonresident, provided sufficient person’s copy that notice of such service and a process by regis- are or notice forthwith sent Causing injury by “3. an act or tortious mail, receipt delivery State; tered or certified with omission in this Secretary requested, by defendant defend- Virginia or defendants at such defendant’s or Code of 8.01-329: § address, process post-office “Service of ants’ last or notice. —A. When known by personal jurisdiction compliance the Sec- the exercise of is autho- affidavit of herewith by chapter, process retary designated or rized this him for service or someone may purpose having knowledge notice be made in manner as is com- the same such provided chapter (§ seq.) pa- for in et pliance, 8.01-285 shall be forthwith filed any per- of this title in in which other case pers action.” jurisdiction sonal is exercised over such a Supreme Virginia Court of has held holding the The hand, if we follow other if case, is not tolled supra, period the limitation Virginia court’s Street the defend- despite date of last upon process can be served to run begins statute process under action arose in service the cause of ant’s absence exposure, then footnote York, “long arm” Virginia’s New New City, York not does inter- from the state last act of sexual because absence 1970 where the instance, of a prosecution In the first obstruct place. course took 1965, 206 Va. Virginia by Bergman Turpin, its two claim. v. is barred has hereto- no court In the other S.E.2d 135. This statute of limitations. year holding that the case, Virginia. fore cited this we also arose in cause of action where there applicable is not tolling statute statute, Code of tolling has a Virginia available to method of service another 8.01-229, part: Virginia, pertinent Insco, Wyo.1976, plaintiff. Tarter com- action has been “D. When an 550 P.2d 905. process upon a menced and service of be considered Even if it could de- prevented by defendant shall be such Pennsylvan that a cause of action arose fendant ia,16 any statute of limitations bars its Departing 1. from the Common- Pennsylvania The statute of action there. wealth; or 34,17 limitations, provides that a 12 P.S. § himself; Absconding concealing or 2. brought “must be personal injury action or the time when within years two bankruptcy Filing petition The afterwards.” injury was and not done or ar- filing a for an extension petition 12 P.S. Pennsylvania, tolling statute States rangement under the United residents: applies Act; or Bankruptcy in which “In all civil suits and actions indirect Using any other direct with- have arisen the cause of action shall of such prosecution means to obstruct or defendants in this the defendant state action; cause of action, who shall have in such suit or state after become non-resident of the prevention then the time that such arisen, shall have not be counted as said cause of action have continued shall have the benefit of which the shall not any part within state for the limitations of actions brought.” action must gonococci Pennsylvania right implanting place in 16. In of action accrues Penn- —took injury, sylvania. question as defined the courts of conflicts was decid- state, plaintiff, Trucks, Bendix-Westing- that when the causes are set in motion which ulti- mately produce injury sustained ed in Mack Inc. v. Company, 3rd Cir. house Automotive Air Brake Ay- consequence. as a 1966, 18, 372 F.2d it was held where 788; 1959, 282, Morgan, ers 397 Pa. 154 A.2d v. P.S., Pennsylvania “borrowing” 12 Co., 1949, Foley Pittsburg-Des v. Moines 363 40, applied injury must be because the oc- § curred in Florida 1, 517, year supra. period Pa. 68 A.2d Its two arising generat- out of a cause done; begins injury ing physically objective injury an to run when Pennsylvania; so, therefore, ed in Florida was the act herald- is considered done “when action where the arose and the latter state’s possible damage a tort inflicts a which is action. statutes barred the limitation Ayers and ascertainable.” Morgan, supra. reading au- v. A of the cited 12 P.S. 34: to thorities the rule of the rule to be tantamount discloses “Every brought suit hereafter to recover e., discovery, of action i. a cause damages injury wrongfully done to the injury (physically upon discovery arises of the injury person, does not signifi- where the objective ascertainable). case The final death, brought injury— within two discovery must be result years cant event then was injury presence ington, disease, gonorrhea was Wash- from the time when the —in testing April afterwards; where the D.C. after examination and done and not in cases 22, Pennsylvania injury 1970. No cause arose in be- does result in death the limitation injury, Pennsylvania cause no as defined action shall remain as now established court, occurred nor was discovered in that law.” state, though the cause thereof—defendant’s with- plaintiff during of such residence of Columbia discovered that by virtue of out the state.” she had in fact suffered negligent conduct the defendant. all become non- It affects defendants who have arisen— residents after the cause shall the ma Nebraska also follows “ who had ‘meaning, necessarily, defendants that a accrues jority rule cause of action at the cause of action a residence time the actually when is a occurs and there arose, could non-res they else not “become” Paper basis for a cause of action. Omaha ” Bremer, 1917, idents.’ Hunter v. 256 Pa. Company, Eby Inc. v. K. Stock Martin Con 809, 257, quoting 100 A. from Bates Cul Inc., 1975, 193 848, Company, struction Neb. 861, 862, lum, 1896, 633, 637, 177 Pa. 35 A. 230 N.W.2d A accrues cause of action 440, 55 de St.Rep. 34 L.R.A. 753. Since begins run the statute of to limitations fendant was a of the State resident right aggrieved when has the to party Wyoming at the time of all the occurrences institute and maintain a suit. Weiss v. herein, Pennsylvania statute has run. Weiss, 1966, Neb. N.W.2d 15. and defendant presence in Bend v. fully That rule is more said was Pennsylvania only transient. Marsh, 1945, Neb. 18 N.W.2d 110: must conclude that no We also means “The accrual of a of action cause follows cause of action arose Iowa in Iowa. suit, a institute right to maintain and Restatement, Laws, Conflict of person may one sue anoth- and whenever wrong is in the rule that: “The er, a of action cause has accrued necessary to where the state last event run, until that begins but alleged tort make an actor liable for an equity, time. whether at law or in So place.” takes Andersen v. National Presto when, action cause of arises Inc., Industries, 1965, 257 Iowa when, right to aggrieved has a party interesting N.W.2d 639. It is note that apply proper tribunal for relief.” Andersen, position its support Nebraska, Under the law of no action arose parts may places, of a tort arise in different Commission, there. it cites Price v. Highway State Wyo. 167 P.2d There are can rules that three

it is said: applied as to when a cause of action accrues “* * * Ap- and with- Generally speaking continuing negligence. case of Nebraska, undertaking

out in this plying the least an all inclu- those rules to definition, meaning proof sive there is no as to just tort has only medically is an wrong actually somewhat similar infected —the gonorrhea injurious inde- certain inference is that she unlawful act to another York, gono- 1970. The in New pendent of contract.” following at once cocci have taken hold course, the fact Of reference is made delayed exposure the first or the results (1) parts: in at two that a tort is least guess cannot until some later time. We (2) damage. resulting act committed such situa- try and will not to. Rules for further follows rule that a general Iowa we have men- have been devised and tions injured cause of accrues when Applying tioned or discussed them all. party right has a to institute and maintain an- way precludes one one suit; negli- a cause of action based other. gence accrue has plaintiff does not until the inju- rule, in fact discovered that he has suffered follow York If we the New Griswold, 1967, ry. 260 Iowa Chrischilles the tortious injury being concurrent with 453, 150 N.W.2d 94. Iowa follows plaintiff’s body with invading Since act of rule, noted, appear substance, as would discovery it dangerous the Nebraska exposure it was in D.C. that The Washington, plaintiff. bars of limitations during night as that state place cause of action accrued as far in Nebraska took has a four 10-11, is concerned was in District April because it 1970. Nebraska year personal inju- diversity statute of limitations for confirmed. A federal court in a 25-207, actions, ry Revised Statutes of believes Nebraska would follow § 1975, Nebraska, 1943, discovery beryllium rule in a supple- Reissue where exposed long period, was over a menting 25-201.18 It likewise has a toll- § statute, 25-214, negligence when the arose in ing Massachusetts Revised Statutes of Syl 1975, injury occurred in Nebraska. 1943, covering Nebraska Reissue Barker, vania Electric Products v. 1st Cir. persons.19 long absent Nebraska has a arm 1955, 842, 988, den. 350 F.2d cert. U.S. 25-536, Revised of Ne- Statutes S.Ct. If we follow braska, 100 L.Ed. Reissue of enacted the last we have dis exposure rule in pertinent part: cussed, action, then as far as the cause jur- “(1) A may personal court exercise concerned, Nebraska arose New York is acts directly isdiction who person, over a where intercourse the last act of sexual agent, or an as to a cause of action place. took arising person’s: from the Washington, D.C. as

We foreclose place where a of action arose cause “(c) Causing injury by tortious an act because no tortious act was committed state; or omission in this there, place plain nor was that a where the injured by implanting tiff was of infec While we have been unable to find a tion It true that defendant. subject, Nebraska ease on the we would place Washington, D.C. was the where expect it general to follow the rule that the expense diag incurred medical tolling applicable statute is not where a injury nosis inflicted and treatment of the long arm statute makes a substituted meth- upon controlling her but has no force as to od personal plain- service available to the where the cause arose. While she had mon Insco, supra, tiff. Tarter v. 550 P.2d at Columbia, ey damages her in the District footnote 5 of that case. Plaintiff’s action contracting physical gonorrhea injury of was therefore barred in Nebraska under the took elsewhere. The law of the Dis rule, New York over four regard expressed by trict in that its years prior filing the instant action. analogous way courts in an where rule, discovery Wyoming If the footnote good dealt statute. A long with its arm followed, Ex-Lax, Inc., then the cause of action as to example is Leaks v. USDC DC Washington, Nebraska arose in D.C. F.Supp. long District’s presence gonorrhea provides arm that a statute20 court of the 25-207, R.R.S.1943, himself, period 18. Section 1975: absconded or concealed following limited for the brought commencement of the action . “The actions can be years: (1) begin trespass within four upon An shall not state, to run until he into action for comes property; (2) concealed; taking, real an action for or while he is absconded or detaining injuring personal property, if, accrues, in- after the cause of action he cluding specific recovery actions for the departs state, from the or absconds or personal property; (3) an an action for himself, conceals the time of his absence or rights plaintiff, arising computed shall concealment not be contract, enumerated; and not hereinafter part within which the action (4) ground an action for relief on the brought.” must be fraud, but the cause of action in such case 13-423, 20.Section pertinent D.C.Code 1973 in shall not be deemed to have accrued until the part: discovery fraud, except provided “(a) sections 30-2206 and A District of 76-288 to Columbia court ex- 76-298.” 25-201, R.R.S.1943, personal jurisdiction Section person, 1975: ercise over a “Civil actions can directly agent, commenced who acts as to a prescribed chapter, within the time in this arising person’s— claim for relief from the after the cause of action shall have accrued.” 25-214, R.R.S.1943, “(4) causing 19. Section 1975: tortious in the District “If, of Columbia an act or omission outside against when a cause of action accrues person, state, regularly the District of does a Columbia if he he is out of the or shall have

353 Inc., Grigsby Sterling personal jurisdiction Drug, F.Supp. District exercise (1975); affirmed, U.S.App.D.C. a relief for in some cases on claim of by (1976). in the District causing injury Grigsby an 543 F.2d 417 In the tortious jurisdiction. or omission outside the statute of limi- act court concluded that Phoenix, plaintiff in Arizona tations to began The was run when knew, purchased pills she a box of Ex-Lax of due dili- through where the exercise a known, se- she a shortly gence and took two. suffered that She could to hospi- injuries by reaction went a Phoenix claim were caused a vere that her physician product. also saw a defect That tal for treatment and in the defendant’s month her examina- prescribed knowledge acquired upon who treatment. A later was by though where she tion a physician she returned to the District even in October she on a contin- in had symptoms claimed continued to suffer Grigsby’s instance she and, incapacity, uing manifesting injury August. basis because of lost It was not in The being by physician income. held that Arizona until the her in court examination arose, C., any Margaret place Washington, when the dam- D. Housen age injury, incurred in the District thereafter was knew to prior of her that time all damages. one measure of her total of the elements of the cause of action in tort present. We thus see were not the district court Dis- No prior refusing jurisdic- trict of Columbia take could demonstrated examination, any jurisdic- other injuries an and in tion in where the arose the occurrence tion we speculate to divide must refusing elsewhere and in dam- of any injury. ages acquire jurisdiction. principles to the situation apply comparably before us. I impressed am reference with the Chevrolet, Inc., also Aiken v. Lustine See dissenting opinion majority opinion and the where the F.Supp. DC USDC Laws, Restatement, Conflict A.L.I. but the Maryland tort was committed in (1934), forth the rule which sets § damage arose in the District. follows: Wrong. The Place of We must after exten- “§ therefore conclude Wyoming’s research that virtue of sive place wrong “The is in the state where borrowing the filing of the last to make an actor necessary event untimely. complaint place.” alleged tort takes liable for majority As I the thrust of the understand Reversed vacate with directions to opinion place is determined to be judgment judgment and enter state York. within of New Included for the defendant. “Summary

is a of Rules section entitled THOMAS, Justice, concurring. a Important Determining Where Situations within Committed.”, included Tort is I concur in the result this case that follows: forth as that section is rule set majority was reached of the Court. vol- another person “2. When a causes would, however, I reach that result in a substance untarily to take a deleterious my different manner. view this action body, within which takes effect was barred three-year deleterious place wrong is where limitations District of Columbia it is not where substance takes effect 12-301, (§ (1973)), Ann. which is D.C.Code administered. the cause of action arose “Illustration: 1-3-117, and to which we are directed Columbia, Y A, X, B like in state to in state The District of “2. mails W.S.1977. state, candy. package containing poisoned rule with re- discovery our follows gets Y and spect to the accrual of an action tort. B state candy eats the rendered, sumed, business, engages or services the District or solicits other Columbia; conduct, persistent course of or derives sub- goods stantial revenue from used or con- a train go to state W. After the cussed in the majority dissenting opin- Z, passed ions, train has into state he be- place injury I would select as the comes ill poison result of the the District of Applying Columbia. its stat- eventually begins upon in state ute of to run poison dies from the limitations which illness, hold that place wrong discovery W. The I would is state Z.” applicable action was barred This peculiarly applica- illustration seems statute of limitations. ble tc the factual situation herein in which the infection could have been transmitted McCLINTOCK,Justice, dissenting. any one of a plain- number of states. The dissent, my brief outline of the basis of any tiff did not manifest symptoms of the agree I majority with the that under the disease, and the illness was identified in law, common gov- limitations of actions are C., Washington, upon D. physical examina- erned the law of the forum. Section tion. I quarrel general have no with 1-3-117, W.S.1977,the so-called borrowing discussion of the law relative to statutes of statute, rule changes to the extent limitations set forth in the majority opinion, apply that we required are limitation concepts but those designed are to reach a that the another state if it is determined degree law, of certainty in the albeit arbi- “cause other state. of action arose” trarily. Their application this instance recognize wrong- that both a majority identifies the of Columbia District as the ful resulting injury necessary act and a are place of the wrong. tort, to effect an actionable and that the The application of the District of Colum place “law of the where the sus- bia statute is consistent with views this tains to her person controls.” 589 previously expressed Court in Ball v. p. P.2d at 341. The record does not dis- Ball, Wyo. (1954); P.2d 302 close and neither the jury nor this court Riner, Wyo., Brown v. (1972); 500 P.2d 524 specific could find the state where either and Cantonwine Fehling, Wyo., 582 P.2d wrongful act took or the 592. Even if one should turn to the more sustained injury person. to her An essen- modern “substantial relationships” test set tial prerequisite application of our bor- forth in (Second), A.L.I. Restatement Con rowing namely, that there be a Laws, flict of (1971), the result §§ borrow, state from which to is then lacking. would be the same. According to 146 of § However, might logically consistent “ * * * that work the law of the state if, with 1-3-117 to hold the action barred § where the injury occurred determines the by the law of all the states where the action rights unless, parties, liabilities of the arisen, might possibly have action is respect issue, particular some here, barred. That is not the situation since other significant state has a more relation Nebraska and both Wyoming, of which are ship principles under the stated in 6 to the states where the could have taken * * occurrence parties *.” Sec place, four-year statutes and both are tion 145 lists the contacts to be taken into discovery disagree- states. My essential applying account in the principles of 6 to ment majority with both the and concur- situation, a tort and none of them result in ring opinions is concept with their that dis- any other state having significant a more covery wrongful resulting act and relationship to the occurrence and these injury is an essential condition to the ex- parties than the District of Columbia. istence of an actionable tort. I would hold Some of these factors application have no discovery importance only is of de- at all under this set of circumstances. termining when a statute of limitations be-

In this particular instance since the selec- gins to run. I would then hold that defend- tion of the District of Columbia avoids ant, who bears the proving burden of facts speculation facts, with respect to the bringing applicable the case within stat- because of the suggestions in the several limitations, ute of has failed that burden. treatises, including those cited and dis- I would therefore not dismiss the action. transmission, very probable found that defend- that specially has incubation jury the gonorrhea during injury any with and in one of ant was infected occurred the five 21, 1970, states; similarly possible which was the period 4 to contact it is and April parties the had contin- that period during perhaps probable which more transmission effect, first in took uing relations. The element of occurred one state and this sexual is, occurred, then occurred that in another. injury an actionable tort when this Con- holding or of knowingly sistently proper infected with careless with the the person, condition, disregard majority his had sexual the law of the state of as to that it is taking pos- injury5 wrongful without and not of the act that relations with prevent sible tort has been proper precautions and a com- determines whether mitted, if tort the disease. But it transmission of the could possible is this of the act resulted in communication in one complete have of 11 become there disease would be an in in the partner plaintiff, compa- to his states which the Consistently wrong. defendant, with the ny separately, actionable or found sojourn may 18-day Dr. Beletti that “one have between testimony during of herself the necessarily the it disease and not transmit the first confirmation of the contact and in another,”1 jury neither the nor this court existence in of the disease properly specific Washington April could or can find on a place period date within a specific and at a I think it that our 1-3— fairly obvious states,2 five the days of and an area of type this adopted 117 was not with of tort plaintiff. infection was transmitted Nor in mind in most and it is true that cases court, consistently could jury is not too state where the action arose diffi- cause, with in the find that on any evidence products liability cult In determine. a specific 18-day period within that date cases, negligence for example, where at within place and a an area of 11 specific product pur- occurs in one state and states developed the disease incubated and state, inju- chased and another used in point to a plaintiff. of ry user, clear demarcation. there is a all case, agree On are I think we the basis that chances infection But in this which its period not the incubation in interstate impression 100%and that one of first variable,4 nature, possible it is is obscure and all the disease is but not place Medicine, Ill, by Chiappa it is said that “the 1. It Vol. incubation is said in the VD Book form, Forish, period approximately question prolonged, that “a in and answer but gonorrhea, symptoms catching patients develop man’s chances of exposed within will 95% in to someone who has it are from one 2 weeks.” twenty exposure. five in for each A to one probably are one in woman’s chances two.” I do not find closer to perfect a 5.I would case at bar consider the anything in the record example principle in set forth sanitary precautions might concerning Laws, Restatement of Conflict of mentioned parties. taken either of the been concurring opinion Justice Thomas’s that when “ person a causes another ‘to take a deleterious York, Virginia, Sexual acts occurred New body, substance takes effect within the Nebraska, Iowa, Pennsylvania, again in place wrong is where the deleterious New York. substance takes effect and not where it is ad- ministered.’ sending poison state, ” person The illustration of Virgin- parties 3. The had sexual first contact person in to another another 4-5, night April ia on last and had their it, of a who then in the course there takes night contact in New York on trip and dies in a in second state becomes ill 18-day period That is the to which I 21-22. refer. third, quite problem. Here pertinent to our poison some state that is administered Disease, Ed., book, 4. In the Venereal 3d know, in either that we do not effect and takes King Nicol, it is said that the incubation know. Never- state or another that we do period may vary days, two to ten but that theless, poison wrong place is where days most cases it is five or less. Control case, body. takes In our effect within Men, Ed., gives Communicable Diseases in 11th poison in Ne- administered could have been days, incubation as “3 to some- Wyoming. braska and taken effect days longer.” times Ch. Practice Seattle, time Port we know is that at some 87 Wash.2d 548 P.2d injured through negligent act 1085, 1090(1976), cause of action accrues “[a] been This has found defendant. of the last element essen on the occurrence prop- that we can jury. I do not think In the same vein is Bould tial to the action.” legislature our erly conclude that said Miles, 85 Nev. 449 P.2d City er that if be barred in one of the action would action accrues (1969): “A cause of states, is likewise possible number of wrongfully put motion when the forces The statute of no one barred in this state. produce injury.” in these au an Nowhere it is may adopted clearly state be unless thorities or that I have been able place of injury. it was the established that discovery find it knowledge is said or is that place law of the of Although it is the actionable the tort. essential element of majority briefly the governs, that a rule majority assume that therefore arbitrarily Wyoming and I think dismiss judicial backing. has no While I cannot cite possible because no sexual place wrong of authority position, direct for I it my believe act If took therein. transmission of place is principles consistent with set forth in the the through disease sexual intercourse is following citations. not certain and if there is an incubation In Fehling, Wyo., 582 P.2d Cantonwine v. period, possible then it is that transmission (1978), quoted apparent we planting and of the infection occurred in approval this statement early from the one state and took effect in another. For 57, 72, Boswell, of 59 P. Wyo. Bliler v. example, entirely possible is that this 57, 80, (1899), Wyo. reh. denied 9 61 P. transmission occurred in Nebraska and took 867: effect in Wyoming so that our state is not “ only the forum state the action but is ‘. . .A “cause of action” is defined Although also wrong. sexual may as matter action be which an Nebraska, contact occurred in disease brought. any per- It is said to accrue to may through pre- been transmitted son when person that first comes to a * * * contact, Nebraska, taking vious effect in so right to bring Again, an action. injury. that was the If the state of action- committed, when a or a wrong has been Nebraska, able tort was committed in con- occurred, duty breach of the cause of ceded by majority discovery be accrued, although action has the claimant state, ” the statute would not start to run * * ignorant be (Em- of it. until the wrong was discovered. But that phasis added) state is by majority only excluded on I therefore conclude that it is in the the basis discovery that was made either application of the statute of limitations to C., New City Washington, York D. the remedy sought to be for an accrued discovery is said to an essential be element cause action the question that of dis- to the cause of action. covery It is importance. becomes of I discovery would submit that the fact of limitations question connection with the is ingredient not an essential to the exist judicial that we that find statements wrong ence of an and that actionable “discovery” of the upon action has accrued position majority (more clearly enun wrong injury. appears It that this is a ciated Justice in his concurring Thomas developing 2 Wood on Limita- concept. opinion) authority sustained neither tions, 1916, 276c(l), 1408-1410, pp. 4th Ed. nor reason. can Obviously no suit we find broad statement: this brought knowledge without of facts which existence of a ignorance “Mere claim, constitute the but as basis of said prevent cause of action does the run- Torts, Ed., 46, 1 Cooley p. 4th “it ning of the statute of limitations unless is the conjunction damage wrong there has been fraudulent concealment creates a tort.” As said the Su preme part Washington invoking Court of of those the benefit Highline School King District No. County statute.” (1936) section discloses 200 N.E. 104 A.L.R. 450 of the whole are Examination discovery principle ex- proposition wrong based on the application no “[t]he violated, done, right old rule has cases. But this cause cept in fraud states, including the invasion takes many Wy- complete when changed been 717, 188 place,” at N.E.2d at majority as conceded 237 N.Y.S.2d oming, which case, being But the statute discovery rule. This has turned to the literally read and it was considering limitations was significance only rule is of time begin said to to run from the question of when the statute limita- occurred, known or not. begins quotation from whether tions to run. This at Company, This was the established rule the time Gazija v. Nicholas Jerns Wood (1975) P.2d wrote Wash.2d his The devel- treatise opment designed particularly pertinent: discovery rule get away from this harsh result many damage “While in instances occurs represented approach, a different I have immediately upon action accrues Gazija, supra, the resort quoted from act, wrongful the this occurrence continuing of some courts to such fictions In where always true. circumstances or con- negligence, fraudulent concealment sustained, plaintiff the some but harm is matter fraud. As the whole structive it, application of is unaware of a literal Torts, Ed., 4th up in Prosser summed may result the limitations statute of 30, p. 144: avoided grave Courts have injustice. “ * * * Shaw[6] Quite like have been consequence of older cases there recently meeting continuing a the issue the fictions of wave of decisions by adopting will head-on, that the statute negligence, holding concealment or fraudulent no as intended to run longer is now wave be construed fraud. There constructive abandon these until the has in fact discovered of modern decisions which injury, by the hold the that he has suffered simply fictions and these that diligence longer exercise of reasonable should statute will no be construed as have it.” until discovered intended to run the has inju fact that has suffered discovered he cases say applying Prosser does not ry or the exercise of reasonable dili previous that say rule do not discovery it. gence should have discovered [Cita law include rules of tort are amended tions omitted] as an element of tort. discovery “Bearing construing in mind that we are to a strictly construc- decisions are confined just limitations statute and not defini- limitations stat- tion application action, tion of the word ‘ac- a cause of ute. in a crued’ construed manner should be possi- I that I referred to concede purpose facie prima consistent with a concerned possibilities bilities. If those right within a compel the exercise of a an ac- committed whether defendant doing an una- reasonable time without it well might against plaintiff, tionable tort added) injustice.” (Emphasis voidable not sustain did be said that her. How- resting upon proof burden majority discovery include When the ever, his has not contended in accrual, is the defendant in the that com- element evi- that mission, tort, ignore upon argument brief or oral they completed of a support ver- concept of dis- dence insufficient whole in which the manner jury. rendered negligence v. dict of covery developed. Heyden has Schwartz of limitations is one 12 The bar of the statute Newport N.Y.2d Corporation, Chemical 142, sought 4 raised the defendant 237 188 N.E.2d to be N.Y.S.2d liability. such (1963), majority, avoidance of established A.L.R.3d 814 cited case, pleading party as well earlier v. as the Schmidt “[t]he proving that Co., 270 burden Desp. Transp. N.Y. limitations Merchants (1921). Rogers Rogers, 200 P. 1090 6. Shaw v. 117 Wash.

358 However, considering v. True them. in order to

the action is barred.” Garland Corporation, F.Supp. 354 330 Temper just indicate that this dissent has not been (D.C.W.Va.1973). also, v. Ray Oklaho- See joust an idle with the statute of limitations Co., Mfg. ma Furniture 170 40 Okl. issue, I some I would add that while find (1935); P.2d Bank & Savannah Trust propositions merit in some advanced Meldrim, Ga. Co. v. 25 S.E.2d 567 reversal, nothing I which would find (1943); Cunningham, Wahl v. Mo. entry judgment result in direction of the (1928). indicating While S.W.2d that for the defendant. complete agree- the authorities are not in ment, it is said Limitations C.J.S. p.

Actions “ ** * in a majority jurisdictions party

is a rule that pleading stat- is,

ute proof, has the burden of proving

burden of the cause of ac- statutory

tion than accrued more time before commencement of the CAMPBELL, Appellant Richard N. action.” (Defendant below), passed seem This court does not to have specifically proof burden Wyoming, Appellee STATE of cases, good many years lies in such but a (Plaintiff below). , ago it said that defense of limitations “becomes available on demurrer No. 4820. petition affirmatively shows Supreme of Wyoming. Court statutory period elapsed has before the ac tion v. was commenced.” Marks Board of Jan. 488, 493, County, Wyo. Com’rs Uinta (1903). 8(c), 72 P. 894 Rule W.R.C.P. treats

the statute as an affirmative defense. Ford, Wyo.

First Nat. Bank of Morrill

110, 121, (1923), 31 A.L.R. 1441 P.

is-said that is on proof the burden of defenses,

defendant “as to all affirmative they

whether relate to the whole case or

only-to certain issues the case.” plead

Defendant does not the statute of state, any particular

limitations of

claims that the action is barred

provisions of our borrowing 1-3-

117, W.S.1977. In this court he relies on the

District of three-year Columbia statute. I

would hold that inapplicable on the already discussed,

basis and since he has

shown no governs other statute which

has possi- not shown all statutes of places run,

ble have wrong he failed this,

in his burden. it follows that From

the action be dismissed. should not assigned

While other have been errors

defendant, they been discussed

the majority point my and there is no

Case Details

Case Name: Duke v. Housen

Court Name: Wyoming Supreme Court

Date Published: Jan 12, 1979

Citation: 589 P.2d 334

Docket Number: 4811

Court Abbreviation: Wyo.