9 N.W.2d 130 | Wis. | 1943
Upon these allegations, defendant contends that the action is one of tort for malpractice and barred, (1) because of plaintiff's failure to give notice of injury within two years, and (2) by the six-year statute of limitations applicable to actions to recover damages for injury to person or property. Sec. 330.19(5), Stats. Siebert v. Jacob Dudenhoefer Co.
It is further contended by defendant that if the complaint is grounded upon the original tort, fraudulently concealed, the latter circumstance does not prevent the statute of limitations from running. Blake v. Miller,
Plaintiff asserts that the cause of action is not one for malpractice but one for fraud, in that defendant occupying a position of trust, and confidence, and knowing that the needles were left in the abdomen, being informed that plaintiff proposed to seek other medical advice and for the purpose of inducing plaintiff to refrain from this course of action, falsely represented to plaintiff in 1931 that the needles had been removed and could not be the cause of her continued ill-health; *5
that under the amendment of 1929 to sec. 330.19(7), Stats., she has six years from her discovery of the fraud in 1931 within which to commence her action. Ch. 24, Laws of 1929, struck from sec. 330.19(7) the words "in a case which was, on and before the twenty-eighth day of February, A.D. one thousand eight hundred and fifty-seven, cognizable solely by the court of chancery," thus making the limitations upon actions for deceit run from the date when the fraud was discovered. See Thom v. Sensenbrenner,
These contentions present questions of considerable difficulty. On each occasion that defendant, in the course of his professional treatment of plaintiff subsequent to her operation, continued to disregard the presence of the needles as a factor in her condition in the face of his own knowledge that they were there, he was doubtless guilty of a malpractice, however fraudulent his conduct actually was. However, when plaintiff informed defendant that she proposed to seek other medical advice and when, for the purpose of forestalling this course of action and not in connection with any medical treatment, defendant repeated the misrepresentations with the actual result of causing her to abandon her announced purpose, he stepped out of his professional character and committed a new and substantive breach of plaintiff's rights constituting fraud and redressable by an action of deceit.
Giving to the complaint that liberal construction to which it is entitled under the code, we consider that it sufficiently alleges that defendant's fraud was wholly apart from the necessity of treatment and sufficiently outside of, and beyond the relationship of doctor and patient to constitute an independent fraud and not malpractice. The representations were new and made under allegedly different circumstances than the earlier representations, and a new form of detriment to plaintiff appears, namely, the abandonment of her announced intention to seek other medical advice. The allegations of *6 the complaint bring the case within the decision of this court in Seideman v. Sheboygan L. T. Co., supra. In that case plaintiff, by reason of fraudulent misrepresentations, had bought certain bonds. Under her contract she had the right to return them if she felt insecure. In June, 1923, plaintiff, being of the view that the bonds were not as represented, demanded of defendant that she have her money back. Thereupon defendant made further misrepresentations which were effective to persuade her to keep the bonds. The case came up upon the question whether the statute of limitations had barred plaintiff's action. That turned upon the question whether there was involved in the case merely a continued course of concealment of the original fraud, in which case the six-year statute would apply as the cause of action was not solely cognizable in equity, and the 1929 amendment, of course, had not been enacted. The court, however, held that there was more in the situation than mere concealment of fraud. The court said (p. 102):
"It is, in effect, asserted that within the six years prior to the commencement of this action, upon a then present desire of the plaintiff to surrender, because she deemed them valueless, the securities which she had purchased long prior thereto from the defendant Trust Company and to assert a right which she then had under a then valid and subsisting contract for a repurchase of the bonds by the defendant company, she was induced, by misrepresentations then made as to an existing situation, to refrain from insisting upon her contract rights to recover back her money."
The court in the Seideman Case, supra, considered that case to be within the exception thus described by this court inBlake v. Miller,
"If the plaintiff had contemplated action of any sort and the defendant Miller had intervened and by means of false representations had induced the plaintiff to refrain from acting, a different situation would be presented. No allegation of that character appears in the complaint." *7
These cases are to be compared with the case of Larson v.Ela,
It is contended that in any event this demurrer should have been overruled because the answer did contain the allegation that the cause of action is barred by the statute of limitations and that defendant should, in any event, be permitted to contest the question whether plaintiff should not reasonably have discovered the fraud much earlier than she did. The allegation in the answer is not adequate. It is a mere conclusion of law without any supporting premise of ultimate fact applicable to the cause of action for fraud.
By the Court. — Order affirmed, and cause remanded for further proceedings according to law. *8