181 Iowa 145 | Iowa | 1917
Complaint is made by appellant that the court erred in sustaining defendant’s motion to strike parts of the petition wherein it is alleged that defendant used the X-ray machine without the knowledge of plaintiff’s parents. The . parents are not suing in this action, and, in the view we take of the case, the ruling on the motion to strike is not material, because the stricken testimony would not have made a case on demurrer or prevented the running of the •statute of limitations had the motion not been sustained. The real question in the case, as conceded by appellant, is whether his claim is barred by the statute of limitations. We have not been favored with an argument for appellee. We prefer argument, because, in its absence, the court is compelled to make an independent investigation.
It is alleged in the petition, substantially, that, in 1901, when plaintiff was under seventeen years of age, he .accidentally broke his right wrist; that it had been set by other doctors, but, about June, 1901, defendant used his X-ray machine in one application upon plaintiff’s wrist, to determine whether the bones were properly set, and found that they were; that, at this time, and for some years prior thereto, defendant had been a regular practicing physician and surgeon; that thereafter, and during the month of July, 1901, upon the request of defendant, and for the benefit of defendant, plaintiff went into defendant’s office, without the knowledge or consent of plaintiff’s parents, and defendant experimented upon plaintiff with defendant’s X-ray machine, to secure pictures of plaintiff’s hand and wrist; that he continued for ten days in said expern ments, and used the X-ray machine on plaintiff’s hand and wrist many times, and made long and close exposures; that, as a result -thereof, the skin on his hand and wrist became discolored; that defendant then informed plaintiff and his parents that the use of the X-ray machine caused such
The demurrer was in this form:
“That the petition shows upon its face that the plaintiff’s alleged cause of action is barred by the statute of limitations, in that: (a) The said cause of action did not accrue within three years prior to one year after the plaintiff attained his majority, and no sufficient facts are stated to postpone the running of the statute of limitations, (b) That the gist of plaintiff’s action is negligence, and his cause of action, if any, accrued at-the time the injury was done, whether the extent was then known or not. (c) That, under the law, the right to maintain an action for negligence is distinguished from the measure of damages resulting from such negligence; and, although the entire damages resulting from the alleged negligence of the defendant was not known to the plaintiff until his time of recovery was barred, yet the time in which the action may be brought was not prolonged thereby, (d) That said statute does not run from the time of the consequent injury to the plaintiff, (e) That plaintiff’s cause of action is not founded on fraud, and the allegations of the petition do not defeat the bar of the statute.”
Appellant has not argued the question as to whether, if a cause of action accrued at the originál injury, suit could have been brought by plaintiff by Ms guardian or next friend, or whether he would have time after attaining
Appellant says in argument that there is only one main controlling question to present to this court in this cause; that the demurrer raises only one question, and that is the question of the statute of limitations; and he insists that, on account of actual fraudulent concealment by defendant, this cause or right of action did not accrue until the year 1915, the time of bringing this action, and hence the action is not barred; that the main legal proposition is that, where a party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute of limitations would commence to run only from the time the right of action was discovered, or might, by the use of diligence, have been discovered. The only authorities cited are in support of this proposition. Appellant cites District Township of Boomer v. French, 40 Iowa 601; Wilder v. Secor, 72 Iowa 161; Carrier v. Chicago, R. I. & P. R. Co., 79 Iowa 80; Cook v. Chicago, R. I. & P. R. Co., 81 Iowa 551, 564; Bradford v McCormick, 71 Iowa 129; Findley v. Stewart, 46 Iowa 655, 657; Cress v. Ivens, 155 Iowa 17, 20; Aultman v. Adams, 35 Mo. App. 503; Mullen v. Callanan, 167 Iowa 367, 379.
The gist of plaintiff’s cause of action is based upon the alleged negligence of defendant in 1901, and the claim that defendant fraudulently concealed some of the effects of the injury caused by the X-ray machine. It is’ alleged that defendant knew and fraudulently concealed from plaintiff that the burning in 1901 would result in cancer. Neces
It is not claimed by appellant, as we understand it, that his cause of action is based on fraud, under Section 3448 of the Code. Uuder that section, it is provided that the cause of action shall not be deemed to have accrued until the fraud shall have been discovered by the aggrieved party; and Code Section 3447, Paragraph 6, limits to five years the period within which an action may be brought in such cases.
It has been held that the fraud contemplated in Section 3448 is only such as was heretofore solely cognizable in chancery, and that, where the fraud is not of that character, but the plaintiff’s remedy is concurrent, the exception there made does not apply. Gebhard v. Sattler, 40 Iowa 152; Brown v. Brown, 44 Iowa 349; Phoenix Ins. Co. v. Dankwardt, 47 Iowa 432; Relf v. Eberly, 23 Iowa 467; McGinnis v. Hunt, 47 Iowa 668; Carrier v. Chicago, R. I. & P. R. Co., 79 Iowa 80; Daugherty v. Daugherty, 116 Iowa 245; West v. Fry, 134 Iowa 675; Baird v. Omaha & C. B. R. & B. Co., 111 Iowa 627. The last two cases distinguish between fraud and mistake. In Lougee v. Reed, 133 Iowa 48, it was held that Section 3448 has no application to an action against a clerk of court for omitting to index a judgment, because such is governed by Section 3447, providing that actions against officers for neglect of official duty must be brought within three years. As bearing upon this, see Ott v. Hood, (Wis.) 44 L. R. A. (N. S.) 524; Cornell v. Edsen, (Wash.) 51 L. R. A. (N. S.) 279.
“But, conceding that it might have been brought either at law or in equity, or that a court of law alone had jurisdiction, still the action is not barred, because the cause thereof was deliberately concealed from plaintiff.”
So in the Gress case, where there was no knowledge by plaintiff that there were to be commissions in a land trade, and defendants falsely told plaintiffs that there were to be no commissions. We said, in Cole v. Charles City Nat. Bank, 114 Iowa 632, at 635, referring to Cook v. Chicago, R. I. & P. R. Co., 81 Iowa 551, one of plaintiff’s citations:
“It is there stated that the statute does not begin to run, where a cause of action is fraudulently concealed, until the facts are discovered by plaintiff.”
In McKay v. McCarthy, 146 Iowa 546, 551, we said of that case:
“It is not alleged that the cause of action was concealed by defendant, and for this reason * * * District Township of Boomer v. French, 40 Iowa 601, and Carrier v. Railway, 79 Iowa 80, are not in point.”
The last two citations are among those cited by appellant in this case. In the instant case, was the plaintiff’s cause of action concealed by the statement of the defendant that the original burning was but temporary and was of no particular consequence, and by the fraudulent concealment of the true effect produced by the use of the X-ray machine? Plaintiff alleges that he was burned in 1901,' and, as he alleges, by the negligence of the defendant. This fact was known to plaintiff and his parents. All damages
“The time when the action accrued on the bond is the time when it accrues for the negligent act. It is true that the negligent act had been committed before that time, but there was no immediate injury or damage, nor does the law imply there was any. The injury and damage were consequential, depending on the happening of certain things in the future.”
In Miller v. Lesser, 71 Iowa 147, it was held that an action upon an unwritten contract against one who had removed to Iowa and had lived here for five years after the cause of action had accrued was- barred by the statute of limitations, — notwithstanding the fact that the defendant
“When the attorney was chargeable with negligence or unskilfulness, his contract was violated, and the action-*155 might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action.”
And in Gould v. Palmer, 96 Ga. 798 (22 S. E. 583), it was held that it was not a special damage or injury resulting from the unskilfulness of an attorney, but the breach of duty imposed by the contract of employment which gives a right of action for damages sustained; and the statute of limitations- in such a case, therefore, runs from the date of the breach of the duty, and not from the time when the extent of the resulting injury is ascertained. A number of other cases to the same effect are cited in the same note. In 25 Cyc. 1135 (18), we find this doctrine:
“The test to determine when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. If the act is of itself not unlawful in this sense, -and plaintiff sues to- recover damages subsequently accruing from and consequent upon the act, the cause of action accrues, and the statute begins to run when and only when the damages are sustained. But if the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage however slight, and the statute will operate to bar a recovery not only for the present damages, but for damages developing subsequently, and not ascertainable at the time of the wrong done; for in such a case the. subsequent increase in the damages result*156 ing gives no new cause of action. Nor does plaintiff’s ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered. Where the doing of an act is attended immediately by resulting actual damage, the statute begins to run at once.”
It is our conclusion that the plaintiff’s alleged cause of action was barred by the statute of limitations, and that the court was right in sustaining defendant’s demurrer to the petition. The judgment is, therefore, — Affirmed.