Stephen J. Kozan v. Dr. Glenn E. Comstock, 270 F.2d 839

Stephen J. Kozan v. Dr. Glenn E. Comstock

270 F.2d 839

5th Cir.

1959

Check Treatment

*1 Edge personality was at the both occasions when fictional On attached to manager, spoke Mr. that name. hotel he with the Holladay, representing “R. he was judgment right. The verdict and were Edge Washington, Spaine” D. C. E. judgment Holladay (R. Spaine) Mr. E. told that he Affirmed. his children had been Florida with Daytona spent and had at time some manager’s family. The Beach with testimony leaves no doubt that cashed upon reliance check because of his integrity reality, genuineness, the ques- “Spaine”. fictional When why as to he cashed check tioned “any as an without identification such Holladay Express Card”,

American Mr. testified: Stephen KOZAN, Appellant, J. long “Q. you you how Do recall Edge, with Mr. Sir? A. “I talked COMSTOCK, Appellee. Glenn Dr. E. recall the exact number min- don’t No. utes, We had conversation. Sir. Appeals United States Court of Fifth Circuit. “Q. you Do recall what con- Yes, Sept. A. was about? Sir.

versation “Q. fact, A. What was it? may put in, one rea-

if I that’s why, you say, Edge now, Mr. son — Edge. course, you Mr. I said Edge, know him as Mr. don’t sir. Spaine, to a Mr. who is I talked your gentleman seated there at ta- I recall the conversation be- ble. he had told me he had been cause in Florida with his children down spent Daytona and had some time We stood there at the desk Beach. discussed the matter. It was he had second time that been in within a month and we had hotel on each time. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conversations As had said, sir, him I knew as Mr. I Spaine.” undisputed us, evidence before On factual situation unlikе case,2 it is clear the hotel Hubsch Edge’s upon in reliance check cashed Spaine” reality “R. E. and the the name nothing personality in the record to show 2. “There with associated the name.” any placed by States, Cir., 1958, reliance there Hubsch v. United upon Hospital Halifax F.2d name any or character Weinstein

Sylvia Roberts, La., Orleans, New Mack, Joseph Robert Sims, A. J. Ham- mond, Brumfield, La., H. Alva Baton Rouge, La., appellant. Montgomery, Beer, Barnett, Peter H. Read, Orleans, La., Brown & New appellee. HUTCHESON, Before BROWN Judges.

WISDOM, Circuit

Judge. WISDOM, Circuit appeal

This is an from an order the United States District Court of Eastern Louisiana dismiss- ing, plea prescription, plain- on a personal tiff’s action based allegations malpractice. The deci- year sion turns on whether or the torts ten applies. for contracts hold sounds in tort, judgment we affirm district court. defendant, Comstock, Glenn E. Dr. surgeon, licensed now Orleans,

practicing Louisiana. New prac- World War II Dr. Comstock Before Gary, plaintiff, Indiana. ticed Kozan, Stephen Indiana, a resident J. patients. one of the defendant’s ago Dr. Comstock treat- Nineteen right leg. Kozan’s a skin ed abrasion April 21, 1940, developed. Ko- A cancer 856; Metropolitan Life Ins. hip. The Tul.L.Rev. leg amputated zan’s Haack, D.C.E.D.La.1943, F. Co. v. Kozan’s loss of complaint leg avers negli- Supp. 55. Comstock’s Dr. was caused diag- failing gence of skill problem and lack then is the determination *3 cancer. and treat the laws proper nose of the conflict of Lоuisiana Code Article rule. 13 of Comstock Dr. Kozan filed suit forms, provides: of the Practice “The Coun Lake Court of in the Lake Circuit actions, effects, prescription the of de 14, July The ty, 1941. Indiana governed by place time, law the the theAt was never served. fendant ”* * * brought they This as a where on active Comstock was Dr. general rule, sup expresses Army article the States in United the medical officer authority,2 during by ported ample capacity in this served and he the procedural 1954, is 17, the March World II. On War governs.3 drop law of the forum the case Circuit ordered Lake Court taxing plaintiff docket, the ped pre the principle The the entry no docket governs There was scriptive with costs. not law the forum filed the suit when was foreign time between the exceptions. statute without aIf dropped. was it remedy and the time when only limitations not bars 3, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍present October right suit extinguishes Kozan as but the substantive Court States District 1958 in well, apply the United limi then the fоrum will Louisiana. District foreign jurisdiction.4 Eastern period for the tation of the 1958, 1, court extinguishes On December A limitations statute of reinstated expunged right right 1954 order when substantive pending calendar.1 on the suit not was creat known at law but common by present does gen The case ed a statute.5 I. any exception not fall within per in federal court on The eral An in Indiana for rule. diversity citizenship. In sonal case such as this the basis of recognized diversity by courts are bound federal wеll the common law cases right rules of the state not one that the conflict state. sitting. they Si was statute no statute in which Wells v. created 514, extinguishes right. Co., 1953, An U.S. limitations mond Abrasive 345 1214; L.Ed. bars an action S.Ct. Indiana statute with Ind.Stat. 1. in accordance 3 Pet. 7 L.Ed. 676. This was U.S. 1946) : The 5th Circuit has on various occasions Ann. 2-608 principle of an ac- affirmed the “If after the commencement the law of the any governs prescription. g., tion, See, forum fails therein from e. prosecu- Corp. except negligence Armstrong, in the LeMieux Bros. cause tion, Cir., 1937, or be defeated 91 F.2d or the action abate Munos v. South party, judgment Cir., 1892, Co., ern Pacific death of a or 188. F. appeal, or a new ac- arrested reversed Comment, (1950). 10 La.L.Rev. tion within five example right 5. The most common of a determination, and shall be after such is created statute is the action first, deemed a continuation wrongful In death. Lewis v. Recon contemplated.” purposes herein Corporation, 1949, structiоn Finance Roper Co., Monroe Grocer U.S.App.D.C. 339, 177 F.2d a fed 811, 75 La. 129 So. A.L.R. eral district court in the Co Eldridge, 1902, Newman v. 107 La. applied lumbia the Nebraska statute of 688; Comment, 10 La.L.Rev. 31 So. wrongful limitations action for (1935). Beale, where the cause Laws 603.1 death of action 3. Conflict of arose Supreme early Court of in Nebraska. Martinez As v. Missouri Mo.1956, Co., a well- R.R. States said: “It Pacific S.W.2d United applied principle court in Missouri settled a statute of limita- a state Lou forum, op- law оf law of the isiana to an tions is the wrongful themselves death. erates all who jurisdiction.” McCluny Silliinan, to its surgeon filed for em cost rendered of treatment unless or ployees request does years,6 defendant but the within two the. right court, properly, after destroy defendant. The the substantive implied expiration the action con treated two involve

tract. The case did question II. court not discuss the did in tort in con whether the de question us is before serious tract. period is termining prescriptive applicable. con action sounds argues years.7 prescriptive is ten tract phy O’Ferrall case established that *4 suit is bar it is a tort action then sician-patient relationship con of is one year.8 red after one physician may if his tract and a for sue di passed patient not have courts fee in contract should then the rectly plaintiff right on cites question. corresponding The in cont to sue a support various contention cases There is to ract.11 substantial difference a suing ex physician employer it contract suit.9 With between a an a Bridge ception persons physician Nashville O’Ferrall v. treated whom Co., 399, the 963, suing physi So. patient La. fee a for his and a injuries suit between cases involve a first cited not cian for do suffered. In physician patient.10 other cases The and situation the a contrac establishment of principle authority essential, for broad relationship other tual for may plaintiff to elect sue a upon often third there is no which wise basis a they contract, implied by but patient on an party tort provide can In suit a be a sued. enlightenment prob against physician small suffered a for against malpractice suit a re lem whether it lationship not that a contractual essential or in con physician by in tort a sounds exist. The owed a did involve patient case physician tract. mat The O’Ferrall to the as arises a appеared in the role physician, physician for but ter is liable and the (cid:127) suing employer duty. an plaintiff a who was a of this breach 1946). destroyed 2-627 Ind.Stat.Ann. mand for the a trailer. value of The defendant in reconvention had con- 7. Art. LSA-Civil Code repair was tracted to the trailer. There of 1870. 8. Art. LSA-Civil Code express case, an in that and contract similarity par- there is no between the Corp., D.C. v. Geotechnical 9. Pure Co. Oil relationship there and the ties involved 194; F.Supp. E.D.La.1955, Johnson Oberling patient. The Kennedy, 103 So. 235 La. v. involved an action a contract case Miller, La.App.1956, 93; Oberling v. to trees. The Johnson case involved cut Equipment Transportation So.2d by damages a a farmer for suit rice Younger Bros., La.App.1948, 34 Co. which he stored bins that to rice had Bridge Nashville So.2d O’Ferrall v. poorly defendant had constructed. Co., La. So. be said these most can The they is that show where there eases an oil com- case Pure Oil Co. 10. In the may brought an payments be is a contract suing pany to recover was of this contract for breach vessel who crew of its to the it made by negligence by was caused explosion breach injured an caused were contracting parties. one of the negligence. defendant The defendant’s company exploration geophysical awas Veith, plaintiff La.App.1934, hold 11. In Gore 156 So. to had contracted agreed negli- to do a dentist had a certain loss caused harmless patient on a gence There amount of dental work defendant. price. pa express The dentist certain sued the between the contract price defendant, father for the held that tient’s the dental and the court bring The ex contrac- court held there was an an action work. could parties Transportation contract between oral delicto. tu or ex gaso- prescriptive applicable ten Equipment of a case аn owner Co. a reconventional de- trailer line tank thoughtful Review note in Law 23 Tulane defendant upon cases relied that Article 2315 Sum- states Mournet are not also decisive. been seem to have relied So. ner, La.App. 1932, 19 theory the exclusion to against dentist awas implied contract between plaintiff’s wife. wrongful death of patient.13 brought Article under suit was naturally was, Code of the LSA-Civil may divid in other states Decisions a tort enough, court treated categoriеs.14 states ed into three Some any ques- involve case suit. The did tort and hold that the action sounds rem- or election tion of limita to the shorter statute La.App. Rodriguez, Perrin edies. applicable tions Other actions. tort malpractice 153 So. states hold pleaded The defendant a dentist. ap implied tort or in contract. A third refer- court prescription. represented proach those states being delicto, and ex the action red specifiс limita which have a statute of evidently it as parties considered both applies tions suits square- action, court was but tort surgeons.15 physicians and *5 ly us. issue before with the faced in cases are The causes action tort and in find that although malpractice of a inconclusive, author breach contract the injury LSA-Civil Code that actions for from which declares 12. These articles persons iu tort suits bases for be commenced done to must of 1870 n within Barnard, years. Thomрson two v. Louisiana. Tex.Civ.App.1940, 142 238. In S.W.2d authority con- the author’s 13. The action must be with Kansas the malpractice are based on suits that clusion is two “The law of this state Mournet is and 2316 articles case, prevails over form. Substance realistic. supra. iu text discussed perfectly that, notwith manifest It is positions in given state standing petition, 14. As to various the form to the 1256; general 1027; 151 A.L.R. malprac gravamen 74 A.L.R. see action Physicians Am.Jur., and Sur- tice, tort, is a and action ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was geons two-year 122. by § оf limita barred statute Bishoff, 1936, Travis 143 Kan. tions.” the states that 15. one of is California 283, 955, P.2d clearly action iu that sounds holds patient settled law in this state is the states allow the to tort. “It Several sue patient against give a a an action either tort or contract and thus that physician surgeon longer sus- of a him benefit lim- former, Georgia upon reason of look itations. Alabama the tained negligent relationship treatment of the or unskilled as contractual in nature sounding latter, рlaintiff an tort is and allow the to sue for breach upon an action is a Such contract. of contract where the cause of action would otherwise * ** year one after barred barred therefore the shorter Huysman injury.” per- the date Kirsch, limitation on actions to recover for 302, injuries. Cal.2d 57 P.2d sonal Knowles v. Dark & Bos- 312; well, one action is to the Ala. 910. year So. Sell- though Noah, 1923, for torts even Ala. ers v. 95 So. express Wright, 1917, Ga.App.. a an contract between there is Stokes v. Harding patient. hospital 825, plaintiff pleads Lib- In and the 93 S.E. 27. Minnesota if the Corp., erty Hospital 177 Cal. a contract then the six position year statute, ex- P. The Tennessee is rather than the two statute, applies. pressed Bursheim, “The follows: law is settled Finch v. the effect that the Tennessee to statute Minn. N.W. 148. year applies recognize one to ac- a of limitations These states that cause of ac- injuries, regardless personal sounding in either tort tion tiоn may or contract sounds in tort or in arise out of the same whether transaction Saussure, petition De Hall v. contract.” Tenn. form of the determina- App.1956, 297 85. The Texas S.W.2d 74 A.L.R. tive. A.L.R. 1031. malpractice position Many jurisdictions recognized is that suits have years malpractice under the an after two statute action for barred fact is nei- proof, theory, dissimilar as to and recov the action is in tort or in To contract. damages.16 Here, duty in order to erable determinе the examine the must prove negligence to patient-physician have Kozan would relationship. true It is usually show to relationship Dr. Comstock failed use ex- a consensual degree physi agrees other impliedly medical skill ists and the Gary, Indiana, have used would to proper treat patient cians in a manner. prove Thus, inextricably To malpractice under similar circumstances. a contract, up Kozan breach would im- bound with idea of breach pеrform prove plied did the defendant patient- contract. agreed do. relationship, the corre- sponding duty owed, not one It is the nature completely dependent whether a con- that should determine breached purely plaintiff ac or contractual in Indiana. tier a tortious force before provide hybrid expressly tion, question but is stat The ute is retroactive is of whether a limitation particular actions. a See, limitation for such See difficult one. 37-205; g., N.Y.Civil e. Ark.Stat. 74 A.L.R. 1265 and 151 A.L.R. already has 1. Missouri Lou §Act subd. we have that the Practice As decided prescription applies, this stat and has held that we need such statute isiana action after two stat barred not determine whether the Indiana ute years years barring framed his ret after two even ute roactive suits petition applicability. addition, Barnhoff in contract terms. its 327, Mo. 767, Aldridge, 1029, 38 S.W.2d within filed suit in Indiana leg ampu there is time 74 A.L.R. 1252. Where two pertaining express to mal Prior the enactmеnt of stat tated. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ute, position practice would seem to no which statute suits there *6 begins applied malpractice difficulty. However, the to if suits statute limitations of was personal period negligent then for occurs The limitation to run when the act not clear. may patient injuries years. problems two Ind.Stat. arise because the is injury (Burns, 1946). after until 2-202 discover his § not Ann. for contracts years. period. writing running To al in is six of the limitation not An results even old case holds the harshness this 2-601. leviаte some of Section express Staley having an in v. is one contract. states the action Jameson, malpractice Am.Rep. governing have 46 Ind. 15 suits implied plaintiffs position con a to sue in This was restricted allowed 285. later case malpractice benefit held secure the action in order to tract personal longer period Robins v. was an action for of limitation. a Finestone, 127 not the death N.Y. N.W. that did survive 308 Lowrey, 1885, Note, patient. 121 2 Forum Boor 2d N.Y.L. of the 103 Ind. 519. court, 1891, Syracuse Am.Rep. Note, (1956); L.Rev. 165 N.E. court Then, (1955). of Limita in Lane Boi See The Statute also Malpractice Applicable Ind. to Actions N.E. tions malprac despite York, in 11 N.Y.U.Intra.L.Rev. the Boor case New said brought (1955). be in either tort tice suits could or contract. for the federal court one of states which is now Indiana has 6th Circuit indicated that the against specific on actions limitation has a year ap limitation would have two been any physicians. kind “No action of question again plied had the been raised brought damages, in contract or whether Indiana. Baltimore in Ohio Railroad & upon professional tort, services based 1915, Cir., Reed, Co. v. It is clear that F. been should have ren- or which rendered malpractice suits now brought, dered, commenced or be shall specific governed Indiana statute any maintained, in of the courts this within two and must be Guy surgeons, physicians, against hos- state Schuldt, 1956, 286 Ind. sanitariums, others, pitals, or unless said N.E.2d 891. twо filed within action is neglect general act, a rule a or 16. As in a omission suit date get complained contract for breach of ages cannot of.” Ind.Stat.Ann. 2-627 dam pain 1946). suffering. This statute became ef- But see Rudner, days after its date of enact- 349 Mich. Stewart N.W.2d fective Thus, though (1958), NACCA L.J. 29 March ment the statute patient a sued not in when the where in effect contract and damages suffering. arose, plaintiff’s recovered mental cause in agree contract, war in to effеct a cure or instances theory. There tract particular rant a will ob result be exists relationship which the in In such instances an action relation tained. clearly no there is contractual may against physi physician.18 lie contract a patient and ship between incapa However, special may in the war absence a Thus, patient cian. ranty may malpractice contract, person suit a contracting third aor ble of physician in tоrt physician for a an action is with have contracted period for and is Even the limitation patient. to treatment tort actions. contract in which no these instances duty to a present still owes III. im duty care patient. due something over posed law and this Since hold that we Certainly, duty. any tort, contractual plaintiff’s above cause of ac sounds liability for year not avoid a could tion after the dis was barred one having negligent covery contracted сonduct injury, unless duty negligence. The interrupted. plain not be liable for to was somehow It this cases, filing a breach in all owed tiff’s in Indi contention principle duty tort. On pre July interrupted constitutes ana malpractice action then, scription. consider timely we suit were in nature whether interrupted tortious Indiana this would grows relation or running out of a contractual Louisiana.19 origin This view Though in contract. no has have shown courts tortious regards tendency interruption suits a liberal majority represents probably prescription,20 question nature inter view.17 ruption case. does arise in Indi plaintiff’s cause action arose say can there not mean do leg amputated, April when ana his never a contractual 21, 1940, but physician under suit was Generally, physician. plain July 14, Since the filed until his skill best takes utilize lapse negligently fails to tiff allowed more than one judgment. When filing suit, of action tort. cause before have committed a *7 do so he pre- by еxpress may, of was barred lav/ Corp. Liability Miller, Arm of Bros In Le Mieux 17. The Contractual tion. Cir., 1937, Surgeons, strong, Physicians it was 5 91 F.2d 1953 Wash. filing 413; Note, Texas Lou Ind.L. 528 that suit in and in 32 J. held U.L.Q. interrupted proscription Physicians ; and Sur on a suit isiana Am.Jur. geons Physicians U. Federal Court filed in the S. 70 C.J.S. § Mississippi. Surgeons of for the Southern District 57. § Doswell, 1851, La.Ann. Rhinehart guaranteed has cure 18. a suit in state court in Texas result then the a certain warranted prescription interrupted to the in 1840 prone of other states more courts plaintiff’s cause of extent action patient as look when was filed in still viable a Louisiana in See cases annotated in contract. Filing in 1849. libel rem court 74 A.L.R. A.L.R. ship interrupts prescription per its a later owner for provides: “The 19. La.R.S. 9:5801 liability. Hotard v. Brodr sonal Wil competent ju filing of a suit a court Cir., Aktielskabet, helmsen 23 F. interrupt prescriptions all shall risdiction 668; Board 2d of Commissioners of Port affecting the cause of action therein sued Toyo Kaisha, Orleans v. New Kisen including upon, agаinst defendants, all 865, 113 La. So. 127. nothing minors interdicts.” There is ap Employers’ statute that indicates its American 20. Jackson v. Ins. plication Co., 1942, is to restricted to suits filed La. So.2d Comment, (suing wrong Louisiana courts. Tul. Tul.L.Rev. insurer (1940). interrupts prescription). Both L.Rev. Louisiana and See also Schra- filing Sons, federal courts have hold suit in der Coleman B. Adler & jurisdiction interrupts preserip another 225 La. 72 So.2d 872. alleged interruption scription that matters of before the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍, place. to the lex ever took fori. We affirm.

IV. plain- points raised Two other BROWN, Judge. JOHN R. Circuit briefly. dispensed with tiff I concur the result. Indiana The asserts run, because limitations did statute of the state absent from

the defendant was pending while this cause parties in the Indiana court.21 disagreement to the this suit statute.22 correct construction to resolve court This does decided, question. as stated FURNACE, CHESTER INC., BLAST opinion, outset of this Appellant, interruption govern disposition prescription, FLORENCE, THE Engines, Boilers, Her on inter case. The Indiana etc., Towing and Her Owner Florida ruption fedеral in a suit in has effect no Corporation, district court in Louisiana. Patrick, Donald D. as Owner and Claim- ant PASSYUNK, of THE Jean Pat- V. argument plain Quaker The final City Navigation rick Com- pany (Impleaded Respondents). “Full Faith tiff is that and Credit” Constitution, No. 12842. clause States United 1, requires art. we entertain Appeals United States Court of this suit. clause has never been in Third Circuit. terpreted require that a dis federal Argued Sept. 22, 1959. trict court cause hear a of action that Decided Oct. clearly prescriptive rules barred sitting. in which the court state why us has shown no reason general this case falls rule outside during “The time the defendant tion. When the third clause is read with nonresident the state or absent the rest of statute it is a would seem *8 computed inapplicable public any not be business shall entire statute make periods plaintiff’s limitations; but this case because the cause of fully been action arose in Indiana. when a cause has barred as the interprеted place been laws where the the re- statute has diana court the first the In- defendant applies sided, clause bar such shall be same defense to all only action, had and it is here as Provided, arisen in causes this state: second provisions proviso clause that is limited of this sec- apply only that the cause of action must have tion shall be construed to arisen arising outside Indiana. The causes of action Mechanics Build- without ing Whitacre, 1883, Associаtion v. state.” 1946.) Ind.Stat.Ann. 2-606 Ind. Thus, interruption if application applied,

22. The cites first sen- the correct would be interrupt running of the above and contends tence of the limitation the statute limitations did not while the defendant was absent run the defendant was absent from the state. The absence referred to applies The defendant Indiana. cites the second in the statute to absence while military Gregg Matlock, and contends clause service. plaintiff’s law had barred cause of ac- 31 Ind. 373.