Krebenios v. Lindauer

HENSHAW, J.

Plaintiff's complaint originally charged an ordinary action

ex delicto.

Upon September 28, 1914, he filed an amended complaint charging a violation of a contract of employment and seeking damages predicated upon this violation of the contract. The injury complained of is alleged to have been sustained on June 24, 1912. Defendant

[432]

demurred and upon demurrer urged the har of the statute of limitations. Upon this appeal appellant contends only that, notwithstanding he had pleaded a breach of contract, the court sustained the demurrer on the ground that his action was in tort, and therefore barred by subdivision 3 of section 340 of the Code of Civil Procedure. He makes no mention of the fact that the demurrer also urged that the cause of action, if regarded as

ex contractu,

was barred by subdivision 1 of section 339 of the Code of Civil Procedure. Such unquestionably is the case, for the breach of contract is laid as of June 24, 1912, and the complaint charging upon the breach was filed on September 28, 1914.

But aside from this the action is clearly one in tort and not in breach of contract. Appellant’s industry has enabled him to discover several cases of malpractice by physicians and surgeons which contain no more than declarations by the court that depending upon the circumstances pleaded the action will be regarded as one

ex contractu

or one

ex delicto.

Typical of these is

Gillette

v.

Tucker,

67 Ohio St. 106, [93 Am. St. Rep. 639, 65 N. E. 865]. There a surgeon had negligently left a sponge in the patient’s wound and had continued to treat her for some time thereafter. The statute of limitations of Ohio declares that an action for malpractice must be brought within one year. This action was brought more than one year after the sponge was left in the wound and within less than one year after the severance of the relation of surgeon and patient. The court discussed the continuance of this relationship, holding that the statute of limitations began to run only after the severance of that relationship, and declared “the removal of the sponge was a part of the operation and in this respect the surgeon left the operation uncompleted.” With no more relevancy to the question under consideration are the other cases cited by appellant, and they therefore need not be specifically mentioned. If appellant’s research had led him to an examination of the cases in this state, this court would have been saved this appeal. Thus in