
    Corpman, Appellant, v. Boyer, Appellee.
    (No. 36257
    Decided July 20, 1960.)
    
      Mr. Jerry P. Montas, for appellant.
    
      Messrs. Black, McCuskey, Souers & Arbaugh and Mr. Dan M. Belden, for appellee.
   Peck, J.

The surgical operation upon the plaintiff’s wife by defendant was performed on December 9, 1955, and the petition instituting this action was filed on October 17, 1958. Other issues not required to be here considered were disposed of by the Court of Appeals, and the sole ground of that court’s affirmance of the sustaining of defendant’s demurrer by the trial court was that the cause was barred by the statute of limitations. The parties agree that thereupon lies the only issue for review by this court, and the defendant states the problem as follows: “The basic question before the court is whether a husband’s action for loss of services and consortium of his wife, allegedly physically and permanently injured by the malpractice of a surgeon, is controlled by the four-year statute of limitations established by Section 2305.09 (D), R. C., or does it fall within the one-year limitation established by Section 2305.11, R. C.”

Section 2305.11, Revised Code, provides that “an action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued.” If the present cause does not fail within the purview of this section, the parties concede that the only other statute-of-limitations provision with application is the catchall clause of Section 2305.09 (D), Revised Code, prescribing a four-year period for the commencement of certain actions not otherwise limited.

It is interesting to note phrases used interchangeably by the defendant and apparently regarded as synonymous. He argues that the cause of action “grows out of” an alleged malpractice, then states that we must decide whether the cause “is founded on” malpractice. We incline to feel that, although plaintiff’s claim may be loosely said to have grown out of the alleged malpractice, whether it is “founded on” such tortious action for purposes of the statute of limitations is an entirely different question. The statute itself describes the limited action as one “for” malpractice, and thus is presented the narrow question for present decision.

The exhaustive briefs of the parties present all the cases, bearing on the basic as well as analogous situations, decided by not only this court but also by various Ohio Courts of Appeals and one Common Pleas Court. Helpful reference is also made to text, material and opinions of courts of other jurisdictions. In this review of authority, one case has by both parties been particularly singled out for consideration. It is Kraut v. Cleveland Ry. Co., 132 Ohio St., 125, 5 N. E. (2d), 324, 108 A. L. R., 521.

In the Kraut case, the wife of. the plaintiff was a passenger on the defendant’s streetcar and suffered injuries proximately caused by its alleged negligence in its operation of the car. There, as here, the suit was for loss of services and for medical expenses resulting from the wife’s injuries, and the issue presented was whether the action was limited by the two-year statute for “bodily injury” (now Section 2305.10, Eevised Code) or the four-year statute (now Section 2305.09, Eevised Code), both of which are here under consideration. The court held the statute providing the shorter period to be without application, saying:

“Upon principle it would seem that the husband’s action is for the financial loss he has suffered from the alleged wrong committed by the defendant and not for bodily injury. The husband suffered no injury of that kind himself. The bodily injury contemplated in the statute is that sustained to the person of the plaintiff that brings the action.
“This court reaches the conclusion that the husband’s action was not barred by the two-year statute of limitations but is controlled by the four-year statute of limitations as provided by Section 11224, General Code [Section 2305.09, Eevised Code], and comes within the fourth paragraph of that section which reads as follows: ‘For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.’ ”

Subsequent to the announcement of the Kraut decision, the Court of Appeals for Franklin County had before it a fact situation even more directly analogous to the one in the present case in that there, as here, the tortious act complained of was alleged malpractice. In that case (Cramer v. Price, 84 Ohio App., 255, 82 N. E. [2d], 874), the court held the husband’s action to recover damages, including those such as here sought, to be an action for malpractice and held the one-year statute of limitations applicable. The defendant here argues strongly that the Cramer case is authority for affirming the judgment of the Court of Appeals and attempts to distinguish the present case from the Kraut case. Such a distinction was also attempted by the court in the Cramer case, leading the Court of Appeals in the case now under consideration to observe: “It is to be noted that the Kraut case was considered by the court in the Cramer case and was distinguished. In some respects it is difficult to reconcile the two pronouncements but we feel that we should follow the Cramer case which is specific, in point and not reversed and leave the reconciliation of the two cases, if any, to the court that decided the Kraut case if the parties so desire.” Without attempting a reconciliation of those two cases, we point out that the Cramer case was not appealed to this court, with the result that this court did not have an opportunity to pass on the question here presented, i. e., whether the pronouncement made in the Kraut case applies to an action by a husband against a physician and surgeon to recover damages for malpractice in the treatment of the wife. Thus, it can only be concluded that the two cases are simply diametrically opposed to each other.

This leads us to a consideration of the second alternative urged by the defendant, who frankly argues that the rule established in the Kraut case is “bad law.” In support of this contention, the defendant argues that it is “completely illogical” to permit a third party, suffering only consequential injuries, twice as long a period within which to commence his action as is assigned to him who actually suffers bodily harm and perhaps permanent injury. In support of his position in this regard, defendant cites a number of persuasive eases, including the following: Basler v. Sacramento Electric Gas & Ry. Co., 166 Cal., 33, 134 P., 993; Sharkey v. Skilton, 83 Conn., 503, 77 A., 950; Mulvey v. City of Boston, 197 Mass., 178, 83 N. E., 402; Rex v. Hutner, 26 N. J., 489, 140 A. (2d), 753; and Maxon v. Delaware, Lackawanna & Western Rd. Co., 112 N. Y., 559, 20 N. E., 544. Interesting as those cases are, it can only be said that they represent the law of courts of last resort of other jurisdictions.

Reference having been made to the Cramer case and to authorities from other jurisdictions which support the defendant’s position, it should be mentioned that at least one Ohio Court of Appeals decision and a number of cases in other states incline to the result in the Kraut case. In Cincinnati Street Ry. Co. v. Whitehead, 39 Ohio App., 51, 176 N. E., 583, the court pointed out the distinction between direct and consequential injuries, and in Tutrow v. Mode, 28 O. L. R., 638, a Common Pleas Court reached a similar conclusion. Attention is also directed to Thompson v. Town of Fort Branch, 204 Ind., 152, 178 N. E., 440, 82 A. L. R., 1413; Graf v. City Transit Co., Inc., 220 Ind., 249, 41 N. E. (2d), 941; Roth v. Lundin, 237 Ill. App., 456; and Cliff v. Seligman & Latz, 38 F. (2d), 179.

Returning from those expressions of divergent views to the only expression of this court on the subject, we find in the Kraut case a clear exposition of the principle that a husband’s action for financial loss suffered by reason of a tortious act committed against his wife is separate from any claim she may possess by reason thereof, and in that decision we have a pronouncement of the law which - has remained unmodified by legislative action for nearly a quarter of a century. The essence of that decision is a detennination of legislative intent, and were that determination not in accord with the rule sought to be promulgated by the General Assembly it has had abundant opportunity to make a change. No such change having been made, it is safe to conclude that the determination was accurate, and sufficient reason therein exists for our declining to judicially disturb the Kraut result.

We are not, however, content to base our present conclusion solely upon this evidence of the Legislature’s satisfaction with this court’s determination of its intent, because, even had a far lesser period of time intervened between that decision and this one, we would nonetheless conclude that the former accurately construed the statutes. Here, whether or not plaintiff’s claim “grew out” of defendant’s malpractice, we conclude that by no stretch of the imagination can plaintiff’s cause of action be “for malpractice.” It is our conclusion that the right of action of a husband against a physician for damages for medical expenses, loss of consortium and loss of services of his. wife injured by the malpractice of the physician is not one for malpractice, and such action need not be commenced within the period prescribed by Section 2305.11, Revised Code. Rather, a husband’s action for consequential damages occasioned by malpractice upon his wife is for an injury to his rights not arising on contract or enumerated in the Revised Code sections set forth in paragraph (D), Section 2305.09, Revised Code, and must be commenced within the four-year period prescribed by such section.

In the recent case of Klema, Admx., v. St. Elizabeth’s Hospital of Youngstown, 170 Ohio St., 519, this court held that, where the alleged negligent act of a hospital results in death, the two-year wrongful-death limitation, rather than the limitation of the statute applicable to decedent’s action, had he survived, applies. In Judge Bell’s opinion, concurred in by all participating members of the court, a separate cause of action for the wrongful death was found to exist in the personal representative, distinct from any cause of action the decedent might have had. Similarly, the present plaintiff’s cause of action for loss of consortium and other damages is distinct from his wife’s right to maintain an action for malpractice.

As is apparent from the foregoing, it is the opinion of this court that the present action was commenced within the period allowable after the accrual of plaintiff’s cause of action, and that the demurrer to the petition should not have been sustained on the ground of the one-year statute of limitations.

Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

Weygandt, C. J., Matthias and Bell, JJ., concur.

Zimmerman, Taet and Herbert, JJ., dissent.

Taet, J.,

dissenting. If, when Kraut v. Cleveland Ry. Co., 132 Ohio St., 125, 5 N. E. (2d), 324, 108 A. L. R., 521, was decided, there had been an applicable statute barring “an action for negligence” within less than four years, that decision might require a holding such as that being made in the instant case. However, there was no such statute.

The instant action may be, as indicated by the Kraut case, “an action * * * for an injury to the rights of the plaintiff” rather than one “for bodily injury.” Certainly, however, if it is, it is also “an action for * * * malpractice” within the meaning of Section 2305.11, Revised Code. Hence, this action is not even described by the words of Section 2305.09, Revised Code, because it is not “an action * * * not * * * enumerated in Sections 2305.10 to 2305.12, inclusive, * * # of the Revised Code.” It is “an action for * * * malpractice” and such an action is expressly “enumerated in” Section 2305.11, Revised Code.

As pointed out in the opinion in Klema, Admx., v. St. Elizabeth’s Hospital of Youngstown, 170 Ohio St., 519, 524, there was a specific statutory provision (Section 2125.02, Revised Code) specifying that the statutory death “action must be commenced within two years after the death,” and “the phrase” therein “ ‘except as otherwise provided by law’ can only relate to other provisions relating to death.” Nothing in that statute or in any statutes “relating to death” excluded the application of Section 2125.02, Revised Code, to a death action that was based upon malpractice. On the other hand, the words of Section 2305.09, Revised Code, expressly exclude the application of that statute to actions “enumerated in” certain' other statutes, including the “action for * * * malpractice” enumerated in Section 2305.11, Revised Code.

Herbert, J.,

dissenting. The statement of the case correctly recites plaintiff’s allegation that his wife suffered permanent injuries “as a direct and proximate result of the negligence and carelessness of the defendant.” The cause is here on appeal from the judgment of the Court of Appeals affirming the decision of the trial court sustaining a demurrer to the petition. Examination of the petition discloses three causes of action, the first one alleging breach by defendant of a contract between him.and plaintiff’s wife. Obviously, there can be no cause of action in plaintiff resulting from such breach unless plaintiff claims as third party beneficiary, which of course is not claimed here. The second cause of action alleges that defendant “assaulted plaintiff’s wife” and states that “plaintiff further says that- by reason of the unauthorized assault upon his wife by said defendant in the performance of a cervical cordotomy upon her contrary to her expressed instructions to him, she was severely and permanently injured, and this plaintiff was proximately damaged as he more fully describes hereinafter.” In the opinion of the writer this second cause of action is obviously demurrable. Plaintiff’s third cause of action alleges “carelessness and negligence of the defendant” in the performance of the surgical operation upon plaintiff’s wife by defendant. This should be the only cause of action to be considered by the trial court on remand under the decision by the majority herein.

Both paragraphs of the syllabus in this case recognize that the alleged “negligence and carelessness of the defendant” constituted malpractice which is specifically covered by Section 2305.11 and, therefore, in the view of the writer, exempted from the catchall clause of Section 2305.09 (D), Revised Code. It is noted that Sections 2125.01 and 2125.02, Revised Code, providing for actions for wrongful death are not included in the “enumerated” sections in Section 2305.09 (D) which accounts for the rationale of our decision in the recent case of Klema, Admx., v. St. Elizabeth’s Hospital of Youngstown, 170 Ohio St., 519. Wrongful death is a statutory cause of action separate from personal injury, malpractice or any other.

Going then to the case of Kraut v. Cleveland Ry. Co., 132 Ohio St., 125, 5 N. E. (2d), 324, 108 A. L. R., 521, the first paragraph of the syllabus in that case determined that a husband’s action for injuries to his wife is not barred as res judicata by virtue of an adverse judgment in the wife’s action. The second paragraph of the syllabus in that case is the one which the majority here seek to follow. In that part of the opinion in the Kraut case discussing the point settled in the first paragraph of the syllabus, Williams, J., stated:

“It often happens that when a tort has been committed several persons are injured by one negligent act. One may take as an illustration the wrecking of a bus through the negligence of the operator, which results in injury to several passengers. There is but one wrong committed and that is the tortious act of the driver; yet several actions may be brought as a result thereof. Each passenger injured has a separate right of action for the personal injury he sustains, and each right of action may be asserted in a separate suit; but all the causes of action are founded on the same wrong. So it is as to the two actions with which the court is concerned in the instant case. There was but one wrong but from it sprang two separate and distinct rights of action, one in the husband and the other in the wife.”

Following the reasoning which this court there advanced for its decision that an adjudication in one case could not properly be res judicata in the other (in which I fully concur), I fail to see the logic of the second paragraph of the Kraut syllabus.

Certainly the damages sustained by the plaintiff here in the way of medical and hospital costs incurred by him as well as loss of services and loss of consortium directly resulted from the alleged malpractice. His suit must fall in its entirety if he does not upon trial prove malpractice. Therefore, it seems particularly illogical to me to allow him three more years than his wife to bring an action founded upon the same “tortious act.” Ironically enough, if their positions were reversed the wife would not even have a cause of action for loss of consortium against the defendant here. See Smith v. Nicholas Bldg. Co., 93 Ohio St., 101, 112 N. E., 204, L. R. A. 1916E, 700. Furthermore, a tort-feasor should have procedural rights equal to those who claim to have been injured by his tortious act, and the statute of limitations should be applied uniformly. Here, in the language of Section 2305.09 (D), the “injury to the rights of the plaintiff” can be nothing else but the alleged malpractice which is ‘ ‘ enumerated in Sections 2305.10 to 2305.12, inclusive. ’ ’ I would overrule paragraph two of the syllabus in the Kraut case and affirm the judgment of the Court of Appeals here. 
      
      So far as pertinent, Section 2305.09, Revised Code, reads:
      “An action for any of the following causes shall be brought within four years * * *
      * *
      “(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in Sections 2305.10 to 2305.12 * * * of the Revised Code.”
     