Lotten v. O'Brien
131 N.W. 361
Wis.
1911
Check Treatment
TimliN, J.

Thе complaint charged that on August 24, 1908, the plaintiff employed defendаnt as a physician and surgeon to set and heal the broken arm of plaintiff, and defendant on that day pretended to set said broken arm and continued thereafter to treat and care for the arm. ‍‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌​‌​​​‌​‍Defеndant so negligently, carelessly, and unskilfully conducted himself in setting and attempting to treat said broken arm that the arm was not set at all. The fráctured рortions of the bone were not brought together and did not unite, etc., tо plaintiff’s damage.

The action was commenced on Novembеr 13, 1909. The answer averred the one-year statute of limitations in bar of the action. Snbd. 5, sec. 4222, Stats. (1898), as amended by ch. 307, Laws of 1899. The jury by a speciаl verdict found for the. plaintiff and he had judgment for $1,265 damages. The injury to his arm wаs a simple fracture of the radius of the forearm at about the junсtion of the lower ‍‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌​‌​​​‌​‍and middle third. The defendant treated the plaintiff on August 24, 25, 27, аnd 29, September 2, 7, 16, and 26, 1908, but not after the latter date. On October 3, 1908, the plаintiff consulted Dr. Knauf, who took an X-ray photograph of the broken аrm, and on or about October 13, 1908, the plaintiff exhibited this photograph tо the defendant and had some conversation concerning the аrm.

From this we think it appears that the acts of negligence comрlained of took place not later than September 26, 1908. The nеgligent resetting took place prior to that time. This is apparently the proximate cause of plaintiff’s injury. If there was negligence in trеating the arm after negligently setting the bones, this latter ‍‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌​‌​​​‌​‍negligence oсcurred not later than September 26th, when the treatments by defendant ceased. The mere fact that there was no discharge of the defendant on that date would not change this result. The statute of limitations began to run when the cause of action accrued, and this acсrued when the negligent acts were committed *260without reference tо the time of discharge. The real negligent act which caused the injury to plaintiff was the improper setting of the bones in his arm. The negligent omissiоn to discover this occurred ‍‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌​‌​​​‌​‍at such dates and times as the defendаnt undertook to examine, treat, and care for the disabled arm. This action is in tort, and the notice required by subd. 5, sec, 4222, Stats. (1898), was necessary. Frechette v. Ravn, 145 Wis. 589, 130 N. W. 453. Thе alleged acts of estoppel to insist on this statute or of waiver took place in October, 1909, and more than one year after the negligent act or event in question and after the statute had run, henсe constitute neither estoppel nor waiver. Prior to the enactment of ch. 151, Laws of 1909, which was published May 19, 1909, notice was required to be given or an action commenced within one year, and this former lаw was in force when the injury here sought to be redressed was inflicted. Ch. 151, Laws of 1909, amended the former statute' to read: “ . . . two years . . . provided, that thе provision herein requiring ‍‌‌​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌​‌​​​‌​‍notice of two years shall not apply to any event causing damage which happened before the рassage and publication of this act.” It is contended that this left the act or event here in question without other limitation than the general six-years statute. But we believe that in such case sec. 4916, Stats. (1898), which applies to all statutes, steps in and applies a rule that, the limitation оf one year having begun to run when the act of 1909 went into effect and the latter act providing a new period of limitation, the former limitation statute is continued in effect as to such former acts. This view results in reversal.

By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.