
    Nathan C. Schwartz, Appellant, v. Heyden Newport Chemical Corporation et al., Respondents.
    Argued January 8, 1963;
    decided January 23, 1963.
    
      
      Alfred 8. Julien and David G. Lubell for appellant.
    I. Justice requires and the common-law power of this court permits a decision that the Statute of Limitations only commences to run upon ascertainment of the disease or injury sustained by plaintiff and that the action was timely brought. (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Battalla v. State of New York, 10 N Y 2d 237; Greenberg v. Lorenz, 9 N Y 2d 195; Mitchell v. Rochester Ry. Co., 151 N. Y. 107; Urie v. Thompson, 337 U. S. 163; Sylvania Elec. Prods. v. Barker, 228 F. 2d 842, 350 U. S. 988; Young v. Clinchfield R. R. Co., 288 F. 2d 499; Mitchell v. American Tobacco Co., 183 F. Supp. 406; Ayers v. Morgan, 397 Pa. 282; Fernandi v. Strully, 35 N. J. 434; Ricciuti v. Voltarc Tubes, 277 F. 2d 809; Handler v. Remington Arms Co. 144 Conn. 316; Bing v. Thunig, 2 N Y 2d 656.) II. The complaint, alleges a cause of action commencing in 1957 when injury was first sustained by plaintiff, and thereby the action was timely commenced. (Gile v. Sears, Roebuck & Co., 281 App. Div. 95; Great Amer. Ind. Co. v. Lapp Insulator Co., 282 App. Div. 545; United States v. Reid, 251 F. 2d 691; Milde v. Leigh, 75 N. D. 418.) III. The action was timely brought for the injuries sustained by reason of the negligence of defendant in failing to warn of the dangerous nature of its product. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Rosenbusch v. Ambrosia Milk Corp., 181 App. Div. 97; Crist v. Art Metal Works, 230 App. Div. 114; Comstock v. General Motors Corp., 358 Mich. 163; Union Carbide & Carbon Corp. v. Stapleton, 237 F. 2d 229; Wright v. Carter Prods., 244 F. 2d 53.) IV. The second cause of action based upon breach of the express advertising warranty and the third cause of action based upon breach of the implied warranties were timely brought since the Statute of Limitations as to such actions only commenced to run upon the operation of or discovery of the defect constituting the breach of warranty. (Blessington v. McCrory Stores Corp., 305 N. Y. 140.)
    
      Harmon Duncombe, George S. Flint and Lawrence W. Schilling for Hcydcn Newport Chemical Corporation, respondent.
    I. The first cause of action accrued in 1944 and is barred by the three-year Statute of Limitations applicable to any action to recover damages for a personal injury resulting from negligence. (Conklin v. Draper, 229 App. Div. 227, 254 N. Y. 620; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Golia v. Health Ins. Plan of Greater N. Y., 6 A D 2d 884, 7 N Y 2d 931; Dorfman v. Schoenfeld, 26 Misc 2d 37; Gile v. Sears, Roebuck & Co., 281 App. Div. 95; Great Amer. Ind. Co. v. Lapp Insulator Co., 282 App. Div. 545; Comstock v. General Motors Corp., 358 Mich. 163; Union Carbide & Carbon Corp. v. Stapleton, 237 F. 2d 229.) II. Plaintiff’s second and third causes of action, both based on breach of warranty, are barred by the six-year Statute of Limitations applicable to an action upon a contract obligation. (Varga v. Credit-Suisse, 5 A D 2d 289.) III. Plaintiff’s request that the court overrule its prior decisions as to the Statute of Limitations should be denied. (Urie v. Thompson, 337 U. S. 163; Bing v. Thunig, 2 N Y 2d 656; Thatcher v. De Tar, 351 Mo. 603.)
   Bubke, J.

The sole issue on this appeal, by leave of this court, is whether an order granting defendant’s motion to dismiss the complaint on the ground that the action is barred by the Statute of Limitations was proper. We think it was.

In 1944, when plaintiff was in a Naval hospital, a product called “ Umbrathor”, manufactured by defendant, was inserted into plaintiff’s sinuses for the purpose of making them perceptible in X rays. Some of the substance allegedly remained in plaintiff’s head and produced a carcinoma requiring the removal of an eye in 1957. This action was commenced in 1959. Plaintiff asserts three different bases of liability for the injury allegedly caused by defendant’s product. The substantive merits are not now before us and the sole question is the availability of the defense of the Statute of Limitations respecting each asserted basis of liability.

The second and third causes of action are essentially the same. The second alleges that defendant publicly advertised that Umbrathor was fit for use on humans and that it had been adequately tested and that these representations were false in that the tests were inadequate and the product was unsafe for human use. The third cause of action alleges that defendant warranted to the armed forces (presumably impliedly) that Umbrathor was merchantable and fit for human use. Where the warranty is as to suitability of the product sold, the limitation runs from the date of sale (Allen v. Todd, 6 Lans. 222 [1872]; Blessington v. McCrory Stores Corp., 305 N. Y. 140, 147; Liberty Mut. Ins. Co. v. Sheila Lynn, Inc., 185 Misc. 689, 692, affd. 270 App. Div. 835). In light of these decisions the courts below were correct in holding the warranty causes of action barred under subdivision 1 of section 48 of the Civil Practice Act as having been brought more than six years after the warranty was allegedly breached.

Plaintiff also alleges that defendant was negligent in that it should have known of the radioactive and carcinogenic properties of Umbrathor at the time it was marketed; and, further, that defendant was negligent in that it failed to warn the public and users of Umbrathor of its dangerous properties when it ‘1 knew or should have known ” of such dangers, and that such duty to warn was a continuing one. First, we do not think, on the facts of this case, that plaintiff can bring himself outside the bar of the statute on a theory of a duty to warn. In Conklin v. Draper (229 App. Div. 227, affd. 254 N. Y. 620) the plaintiff sought to avoid the bar of the Statute of Limitations for a malpractice action by alleging that, although more than two years had elapsed since defendant had left forceps in plaintiff’s abdomen, defendant had a continuing duty to warn her of the presence of the forceps. In dismissing her cause of action for malpractice, the Appellate Division rejected plaintiff’s argument of a continuing duty to warn as unsound (229 App. Div. 227, 230). That this principle does not apply solely to malpractice actions is evident from this court’s treatment of the complaint in Schmidt v. Merchants Desp. Transp. Co. (270 N. Y. 287, infra), where attempts to avoid the bar of the Statute of Limitations for a negligence action, by alleging causes of action sounding in nuisance, breach of contract and fraudulent misrepresentation, were rejected. If the nature and origin of the liability asserted is a negligent act, the bar of the Statute of Limitations cannot be avoided through an allegation that defendant had a continuing duty to warn plaintiff of the possible damaging consequences resulting from the act alleged to be negligent. Any duty that may arise to recall the product from the market has no bearing on the rights of those to whom it had been administered years previously.

Turning to the basic negligence cause of action, it is apparent that the facts come within the holding of Schmidt v. Merchants Desp. Transp. Co. (270 N. Y. 287, supra). In Schmidt an action against a former employer to recover for pneumoconiosis, caused by inhalation of dust negligently allowed to accumulate in the air, was brought more than three years after the termination of the employment. The opinion of Judge Lehman recognizes the classic principle that “ 1 in actions of negligence damage is of the very gist and essence of the plaintiff’s cause.’ (Comstock v. Wilson, 257 N. Y. 231, 235.) ” The opinion goes on to say (p. 300): Through lack of care a person may set in motion forces which touch the person or property of another only after a long interval of time (Of. Ehret v. Village of Scarsdale, 269 N. Y. 198); and then only through new, fortuitous conditions. There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose.” All of the text writers and relevant cases so hold. Cooley makes the point as well as any. A cause of action accrues upon the violation of a legal right. In certain cases growing out of the action for trespass, the right is to be free from direct invasions of person or property. The wrong is done, the right violated, and the canse of action complete when the invasion takes place, independently of any actual pecuniary damage. In such cases the right is not to be trespassed upon. Some rights, however, of lesser antiquity, growing out of actions on the case, are not rights against technical invasions, but rather rights not to be damaged under certain circumstances. In such cases the wrong itself is not actionable, the right not violated, and the cause of action nonexistent until damage takes place. (1 Cooley, Torts [4th ed.], § 46.)

None of these views point to a discovery rule. They would indicate, however, that the action accrues only when there is some actual deterioration of a plaintiff’s bodily structure. This is the reasoning of cases holding that the statute doesn’t begin to run until the defendant’s wrong harms the plaintiff. (Gile v. Sears, Roebuck & Co., 281 App. Div. 95 [defective floor caused injury one year later; statute held to run from date of injury]; White v. Schnoebelen, 91 N. H. 273 [1941], [statute held to run from date when lightning struck defectively installed lightning rod].) Since, then, the recognized damages in negligence cases are pain and suffering, loss of earnings and, we suppose, damage to the structure of the body, it is questionable whether any cause of action exists before these things actually happen. But Judge Lehman’s view in the Schmidt case is right as we must assume that the dust immediately acted upon Schmidt’s lung tissue.

Since many of our holdings that the cause of action accrues upon the introduction of the harmful substance into the body are malpractice cases, we should note that our accrual rule in such cases developed through special doctrinal pressures to which negligence cases as such have never been subjected. Originally actions for malpractice were premised on the breach of an implied contract to use the standard of care expected of a professional and the breach of that implied promise gave rise to the action for malpractice. Accordingly, the early decisions held, in accordance with the usual warranty rule, that the statute commenced to run from the time of its breach, i.e., when the act complained of took place. (Pike v. Honsinger, 155 N. Y. 201; Capucci v. Barone, 266 Mass. 578 [1929]; Conklin v. Draper, 229 App. Div. 227, 230, affd. 254 N. Y. 620, supra; Ranalli v. Breed, 277 N. Y. 630; Golia v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 931.) Whether uncritical acceptance of a fading theory of the basis of malpractice liability has led us astray in computing the time of accrual of the cause of action is of prime importance here. If we adhere to our accrual rule in malpractice cases, after recognizing that they are essentially negligence cases, we see no escape from the conclusion that we should follow Schmidt in a classic negligence case.

We should put aside the contention, often justifying abandonment of prior holdings, that social change or advancement in the sciences has so altered the subject matter upon which the law operates that a different result is called for. The insidious and 11 inherently unknowable ” nature of cancer and similar diseases was common knowledge in 1936 when Schmidt was decided. The affecting plea of a plaintiff who could not know he was being destroyed from within fell then upon ears no less sensitive to such appeals than those now hearing this case. To our minds, the adoption of and adherence to the accrual rule by the Judges of our court from 1930 onward renders the simple assertion it is unjust ” inadequate.

Considering the function of a Statute of Limitations as a device for repose, a potential defendant’s equities are the same whether the plaintiff knows of his condition or not. Repose is as beneficial to society in the one case as in the other. While the plaintiff’s equities are greater in one case, it was presumably pursuant to a determination that the interests of an occasional claimant were subordinate to society’s interest in repose that resulted in the Statute of Limitations in the first place. The existence of a discovery provision in the fraud statute bespeaks a legislative judgment that only in fraud cases, by their very nature, were there a sufficient number of unknown wrongs to justify a departure from the general rule. Apparently the rarity of such unfortunate cases in other types of actions did not outweigh the disadvantages of imposing a possible exception to the grant of repose to every person and industry who could be a potential defendant. It is hard to say for certain, but perhaps the possibility of feigned eases against unprepared defendants and the difficulties of proof in meritorious cases led to a decision that society is best served by complete repose after a certain" number of years even at the sacrifice of a few unfortunate cases.' Whatever the policy considerations, the recent amendment of the malpractice statute from two to three years (CPLR, § 214, subd. 6) makes it clear that the legislative choice was deliberately made in the face of strenuously advocated alternatives. (See 1942 Report of N. Y. Law Rev. Comm., pp. 141-143, recommending a discovery provision with an outside limit of six years. A similar recommendation was made in 1962. See N. Y. Legis. Doc., 1962, No. 65[C].)

It is not without reason that change in this area has been thought by us to be the responsibility of the Legislature. Our court has no facilities to inquire into the incidence of hardship cases under the statute, nor the peculiarly legislative prerogative to balance the result of such an inquiry against the countervailing considerations of prudence and social tranquillity that are supposed to justify Statutes of Limitations. Moreover, how could we set limits to the right plaintiff would have us grant? Is it for a court to say that there shall be an outside limit of six years? If so, what of the fact that 15 years passed before plaintiff brought this action?

The judgment should be affirmed, without costs.

Chief Judge Desmond (dissenting).

The complaint, sounding in both negligence and breach of warranty, alleges that while plaintiff was a patient in a hospital in 1944 there was injected into his nasal sinuses a substance manufactured by defendant but that it was not until 1957 that plaintiff learned that this substance was radioactive and carcinogenous and had caused a cancerous condition in his nose. This suit was commenced in 1959. It has been dismissed below as to negligence because not brought within three years after the injection (Civ. Prac. Act, § 49, subd. 6) and as to breach of warranty because not instituted until more than six years thereafter (Civ. Prac. Act, § 48, subd. 1).

As the complaint stands, the limitation periods have run since the pleading says no more than that plaintiff did not learn of the dangerous qualities of the preparation until 1958,14 years after the injection. From his brief and his oral argument, however, it seems that his theory of action is that the carcinogenic qualities of the injection were not discoverable by him until after the 1957 surgical operation. If that be the fact, it would be unreasonable and perhaps unconstitutional to hold that his time to sue expired before it was possible for him to learn of the wrong (see Urie v. Thompson, 337 U. S. 163; Fernandi v. Strully, 35 N. J. 434; Ricciuti v. Voltarc Tubes, 277 F. 2d 809; Handler v. Remington Arms Co., 144 Conn. 316; 63 Harv. L. Rev. 1177, 1207). Statutes (including limitation laws) are not to be construed so as to deny the right to sue for a common-law wrong (Rexford v. Knight, 11 N. Y. 308, 313; People v. Turner, 117 N. Y. 227; Gilbert v. Ackerman, 159 N. Y. 118, 124; Shanahan v. Monarch Eng. Co., 219 N. Y. 469; Borgia v. City of New York, 12 N Y 2d 151). Schmidt v. Merchants Desp. Transp. Co. (270 N. Y. 287), if and to the extent that it is inconsistent with these views, should be re-examined.

The judgment should be affirmed, without costs, with leave to plaintiff, if so advised, to serve an amended complaint.

Judges Dye, Van Voorhis, Foster and Scilepfi concur with Judge Burke; Chief Judge Desmond dissents in an opinion in which Judge Fuld concurs.

Judgment affirmed.  