author:
Price, J.
      Davis, J.,

text:
    Gillette v. Tucker.
    ■ dare and slcill required of surgeons and physicians — Implied duty during employment — Must render such continued service as patient needs — Liability for injuries — Operation for appendicitis — Negligent retention of sponge — Application of statute of limitations — In action for damages — Interpretation of statute.

    1. A surgeon and physician, employed to treat a case professionally, is under an obligation, which the law implies from the employment, to exercise the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or a similar locality, in the light of the present state of medical and surgical science; and that he will indemnify the patient against any injurious consequences which may result from his want of ordinary skill, care and attention in the execution of his employment.
    2. It is the duty of the physician and surgeon to exercise due and ordinary skill, care and attention, not only in and about an operation which he decides to be necessary, but also, in the absence of a mutual understanding, or notice to the contrary, to render such continued further care and treatment as the necessity of the case requires; and he is liable for injuries and damages which proximately result from the want of such ordinary skill, care and attention.
    ■3. Where the physician and surgeon so engaged, operates upon the patient, for what (as in this case) he pronounces to be appendicitis, and neglects or carelessly forgets to remove from the abdominal cavity, a sponge which he had placed therein, and closes the incision, with the sponge remaining therein, and this condition continues during his entire- professional relation to the case and is present when he abandons or otherwise retires therefrom, the statute of limitations does not commence to run against a right to sue and recover on account of such want of skill, care and attention, until the case has been so abandoned, or the professional relation otherwise terminated.
    (Decided November 18, 1902.)

      Error to the Circuit Court of Lucas county.
    In the court of common pleas, the plaintiff, now defendant in error, stated her cause of action in the following petition:
    “Plaintiff, for cause of action against the'' defendant, says that at the times hereinafter mentioned, and for a long time prior thereto, defendant resided in the county and state aforesaid, and held-himself out to he a physician and surgeon, skilled in the practice of his said professions; that plaintiff, at the times hereinafter mentioned, and for a long time prior thereto, was, and ever since has been, a married woman, having the ordinary cares and burdens of a household.
    “That on or about the first day of November, 1897, plaintiff, having theretofore fallen sick of a malady, the character and nature of which she did not understand, in company with her husband, James H. Tucker, called upon the defendant, and said plaintiff and said husband, for and on behalf of said plaintiff, then and there retained defendant as such physician and surgeon, to treat said plaintiff for her said malady.-
    “That said defendant then and there, as such physician and surgeon, accepted the retainer so by plaintiff and her husband to him offered, and thereupon entered upon the treatment and cure of plaintiff for said malady. That upon an investigation then made, and diagnosis of plaintiff’s trouble, defendant informed plaintiff that she was suffering from appendicitis, and that to her proper treatment and cure a surgical operation was necessary.
    “That in preparation therefor, and in pursuance of said employment and said treatment, defendant made arrangements for the performance of said surgical operation, at the Toledo hospital, in said county and state, at which hospital, and for the purposes of said operation, plaintiff was to be taken.
    “That on or about November 1, 1897, plaintiff and defendant being at said hospital, pursuant to said arrangements, the defendant undertook to, and did, perform upon plaintiff, a surgical operation, opening her abdomen, and among other things, removing therefrom, a tumor. That defendant, while performing said operation, and in the performance thereof, did use, and did insert in the opening so made in plaintiff’s abdomen, a cheese-cloth sponge, for the purpose of absorbing and taking up from said opening so made, in the performance of said operation, liberated blood, etc., which cheese-cloth sponge consisted of about eight layers of cheese-cloth sewed together, and which layers were about two inches in width by three inches in length. That defendant, without the knowledge or consent of plaintiff, did carelessly and negligently, and in violation of the obligations of his said contract of employment, leave said cheese-cloth sponge in the opening by him made in the performance of said operation, and in the abdomen of the plaintiff, and did carelessly and negligently, and without the knowledge or consent of plaintiff, close said opening without removing said cheese-cloth sponge therefrom. That for more than eighteen months thereafter, plaintiff was continuously sick of said malady, and for more than twelve months thereafter, viz.: from about November 1,1897, to about December-1, 1899, defendant continued under his retainer, and employment, to treat and counsel plaintiff concerning the same, and during all of which latter time, and upon each and every day thereof, without the knowledge or consent of said plaintiff, said defendant, knowingly, carelessly and negligently, and in disregard of his duties and obligations under said contract of employment, permitted said cheese-cloth sponge to remain in said plaintiff’s abdomen. That on account of defendant’s so leaving said cheese-cloth sponge in plaintiff’s said abdomen, and so enclosing the same, and on account of defendant’s so permitting said cheese-cloth sponge to remain enclosed as aforesaid in plaintiff’s said abdomen, upon and during the days, and each and every of the days aforesaid, a running, painful sore, continually discharging offensive pus, requiring constant care and attention, was created and maintained, and plaintiff was made sick, and during»all the time aforesaid, and up to and until May 1, 1899, suffered great mental and physical distress and inconvenience, and was almost totally disabled from the performance of her family and household duties, and was put to great annoyance, trouble and expense, to her great damage in the sum of |5,000.00,
    “Wherefore, plaintiff prays judgment against the defendant in the sum of |5,000.00, her damages so as aforesaid sustained, and for other and proper relief.”
    The defendant below filed the following demurrer to the petition: “Now comes the said defendant and demurs to the petition of the said plaintiff, because said petition does not state facts sufficient to constitute a cause of action, for the reason that the cause of action therein stated is barred by the statute of limitations”

    This demurrer was overruled; and the following amended answer was filed:
    “The said defendant, William J. Gillette, for answer to the said plaintiff’s petition, says that he admits that during the month of November, 1897, and prior thereto, he was a practicing physician and surgeon in the city of Toledo, Ohio; admits that on or about November 3, 1897, defendant, at the request of plaintiff and her husband, performed a surgical operation upon the plaintiff at-the Toledo hospital, in the city of Toledo, Ohio. Defendant denies each and every other allegation in said petition contained.
    “Defendant, further answering, says that he performed said operation upon the said plaintiff on November 3,1897, and that she remained in said hospital; under his care until December 5, 1897, when she left the same, and defendant had no further charge or' care of her; and defendant avers that if plaintiff thereafter suffered any pain or inconvenience on account of said operation, it was due to her own negligence in failing and refusing to follow defendant’s, advice, and to her own negligence and want of care in other respects.
    “Defendant,, further answering, says that he did not treat plaintiff or perform any professional services of any kind for her during the period of more than one year next preceding the commencement of this action; and that the cause of action stated in plaintiff’s petition, did not accrue within one year before the commencement of this action.”
    The averments of this answer were denied by a reply, and the case went to trial to a jury. The plaintiff introduced all of her testimony and rested her case.
    Thereupon the defendant moved the court to instruct the jury to find and bring in a verdict for the defendant, for the reason that plaintiff’s case was barred by the statute of limitations, which motion was granted and the jury was instructed to find for the defendant on the ground stated in the motion. In obedience to the instruction the jury returned a verdict for the defendant.
    A motion for new trial was overruled and judgment entered. The circuit court reversed this judgment, and the, defendant in error in that court is plaintiff in error here, ashing that the judgment of the circuit court be reversed and that of the court of common pleas, affirmed.
    The important facts developed at the trial are stated in the opinion of the court.

      Mr. D. R. Austin; Mr. M. A. Norris and Mr. George F. Wells, for plaintiff in error.
    Section 4983, Revised Statutes, provides that “Actions for libel, slander, * * * malpractice, etc.,, shall be brought within one year after the cause of action accrues."
    The time when the statute commences to run in this, class of cases is clearly laid down in 1 Wood on Lim. (2 ed., 1893), par. 447 and 455; Buswell on Lim. (ed. 1889), par. 209; Wilcox v. Plummer, 4 Pet. (U. S.), 172.
    The decisions in Ohio are uniform in support of this, interpretation of the statutes of limitations.
    The first cases decided by this court involving this, question were those of Kerns v. Schoonmaker, 4 Ohio, 331; Fee v. Fee, 10 Ohio, 470.
    In all subsequent cases when this question has been involved, decided in this court or in the circuit courts, of the state, the case of Kerns v. Schoonmaker, and Fee v. Fee, have been followed. Lathrop v. Snellbaker, 6 Ohio St., 276; Howk v. Minnick, 19 Ohio St., 462; Williams v. Coal Co., 37 Ohio St., 583; State ex rel. v. Standard Oil Co., 49 Ohio St., 137; Alston v.. Railroad Co., 1 Circ. Dec., 353; 2 C. C. R., 45; Shuman v. Drayton, 8 Circ. Dec., 12; 14 C. C. R., 328.

      The case of Fronce v. Nichols, 12 Circ. Dec., 472; 22 C. C. R., 539, decided by the fifth circuit court, Richland county, September term, 1901, is similar in all respects to the case at bar; and the court, in a very clear and concise opinion, sustains the rule that the statute commences to run, “when the injurious act complained of is perpetrated or accomplished.”
    In the case at bar but one cause of action is set forth in the petition, viz.: That the plaintiff in error on November 3, 1897, after performing an operation upon defendant, in error, negligently left a sponge in her abdomen, and the petition alleges and the proof shows that all the injury sustained by defendant in error, was the direct result of this one negligent act. When, then, did a cause of action accrue, to defendant in error, by reason of this breach of duty? Clearly when the wrongful act was committed on November 3,1897; and from that time we insist that the státute of limitations commenced to run. The statute having once been put in motion it cannot be interrupted by any subsequent act. De Kay v. Darrah, 2 Green (N. J.), 288; Doe v. Jones, 4 T. R., 300; 13 Enc. Law (1 ed.), 733.
    As we have already said, the only act complained of by defendant in error in her petition is the leaving a sponge in her abdomen, in November, 1897. From this one act came all the injury sustained by Mrs. Tucker; and this act or breach of duty on the part of Dr. Gillette, the circuit court says, was barred by the statute of limitations. In fact it was barred at the time Mrs. Tucker had her last interview with the doctor. How then can there be any recovery under the allegations of the petition from damages resulting solely from this original act? But the court says, “If ■defendant was guilty of any negligence in November, 1898, when she called at his office, it would constitute á cause of action in itself.”
    If so, it would be a new and separate cause of action, and must be specifically pleaded in order to make it available. No such new cause of action is set forth in the petition, nor does the evidence show there was any, but even if there was, we are unable to see how it could in any manner remove the statutory bar already complete against the act of 1897, and make the doctor’s conduct and treatment from the commencement of the case one continuous act, or, as the court puts it, a “continuing injury.” It is certainly a new and novel doctrine that the statute of limitations having run against a tort, can be prolonged by the commission of another tort.
    There being but one cause of action, then the only question arising in the case is as to when the cause of action accrued. Very clearly it accrued at the moment that the plaintiff might have maintained a suit upon it, and if the defendant below carelessly and negligently left a cheese-cloth sponge in the abdomen o'f the plaintiff when he performed the operation upon her, and closed up the incision over the sponge, then a cause of action arose in her favor against him, and she might bring suit upon that cause of action at any time within one year thereafter and recover all the damage that she sustained by reason of such act of the defendant. It mattered not what the subsequent conduct of the defendant below Avas Avith reference to the treatment of this case so far as the cause of action was concerned. His conduct in the treatment of the case thereafter, so long as he continued to treat it, might affect the damages which plaintiff sustained, but it could not add to or take from her cause of action.

      Messrs. James M. & Walter F. Brown, for defendant in error.
    The contract of physician and surgeon is express or implied. The express contract may include any stipulation not contrary to public policy. The implied contract is, and the law presumes it to be, first, that the physician shall use the necessary care and attention; second, the necessary skill, and third, that his medicines are proper and suitable. 1 Witthaus & Becker, Med. Juris., 28-9.
    By accepting the retainer, he bound himself to bring to the performance of his undertaking, a reasonable degree of care and skill, * * * that he would indemnify his employer against any injurious consequences resulting from his want of proper skill, care or diligence in the execution of his employment. Craig v. Chambers, 17 Ohio St., 254.
    Until the patient is well, or he has, by his patient, been discharged. 1 Witthaus & Becker, Med. Juris., 26; Potter v. Mengell, 37 Bar., 578; Railway Co. v. Stockwell, 118 Ind., 98; Dale v. Donaldson Lumber Co., 48 Ark., 188; Brodley v. Dodge, 45 How. Prac., 57.
    It would be the duty of the defendant to give the case such continued further attention, after the operation, as the necessities of the case required. Williams v. Gillman, 71 Me., 21; Shear. & Redf. on Neg., section 441.
    This being- the nature of the contract of plaintiff in error, defendant m error complains that he failed to exercise the care and skill he obligated himself to exercise in that, day after day, he permitted a foreign substance which he knew, or ought to have known, was causing the irritation, to remain in her abdomen, whereby, and on account whereof, she suffered damages.
    Clearly, the action is one coming within the six years’ limit of Section 4981, Revised Statutes.
    But, it is said if he was guilty of carelessness and negligence, in the treatment of defendant, he was guilty of tort, for every act of carelessness and negligence is in its very nature tortious. And it is said that “malpractice” is bad practice, and because it is bad practice, it is “malpractice;” and that the limit of an action for “malpractice,” viz., bad practice, is one year — and hence, it makes no difference if plaintiff in error contracted with defendant in error to bring to her case care and skill, and he failed to comply with his contract, this violation of his contract was “bad practice,” and as a consequence, she has no right to enforce her contract, although the law, which gives her that right, and the. section which limits her actions to six years is just as potent as the section which limits actions for malpractice to one year. It would seem that if an act is to b.e adjudged tortious in character, it should be such an act as comes within the plain definition of tort.
    A tort is an act or omission giving rise in virtue of the common law jurisdiction of the court, to a civil remedy tohich is not an action of contract. Pollock on Torts, 4; Cooley on Torts (2 ed.), 2; Bouvier’s Dictionary, Title Torts; Hill on Torts, 1.
    Ordinarily, the essence of a tort consists in the violation of some duty to an individual, which duty is a thing different from the mere contract obligation. Rich v. Railway Co., 87 N. Y., 390.
    Now, the petition of defendant in error was not predicated upon a wrong independent of contract, but upon a clear specific breach of contract. Plaintiff in' error contracted to bring to defendant in error’s case, care and skill. He failed in the performance of his agreement, and she thereby suffered damages. He owed her no duty outside of his contract. It was no wrong to use the sponge in the abdomen. That was proper. It was the leaving it there, and continuing-daily to leave it there, that caused the damage. He owed her no duty outside of his contract to remove it. For these damages, under her contract, she has a right of action, and may assert it within the time prescribed by Section 4981, Revised Statutes, for the bringing of actions upon contracts not in writing. The contract of plaintiff in error bound him to bring to the defendant in error, ordinary care and skill from the time he entered upon his retainer, until either he was discharged or defendant in error no longer needed his services. Ballou v. Prescott, 64 Me., 306; Williams v. Gilman, 71 Me., 21; 1 Wood on Lim., 454; 8 Daily (N. Y.), 537; Banh of Hartford Co. v. Waterman, 26 Conn., 324.
    Ordinary care would have detected the cause of her trouble, and ordinary skill would have removed it. The irritation continued for a year and a half. He knew of its continuance, and he did not remove it. It was his duty, every day during his employment, to have removed it. Hence as his duty was continuous with his service, and his service only ending either with the cure of his patient, or his discharge, and, as he was never discharged, the statute did- not begin to run in his favor until defendant recovered, nearly two years after the operation. Angelí on Lim. (4 ed.), section 120.
    The contract of an attorney to carry out and defend a suit, is an entire contract to manage a suit to its close, and, therefore, the time runs only from the termination of the proceedings. Rothery v. Mannings, 1 Bar. & Ad., 15; Harris v. Osborn, 2 Car. & Mar., 829; Tucker v. Gillette, 12 Circ. Dec., 401; 22 C. C. R., 664; Staley v. Jameson, 46 Ind., 159; Burnes v. Barenfield, 84 Ind., 43.
   Price, J.

When the plaintiff below rested her case, the court sustained a motion to direct a verdict for the defendant, solely on the ground that the testimony introduced to support the plaintiff’s case, showed that her cause of action was barred by the one year statute of limitations. The circuit court reversed the judgment rendered on the verdict so directed, and it becomes necessary that we first consider the material facts which the plaintiff’s evidence tends to establish, and we find that on or about November 1, 1897, the plaintiff in error was engaged, as he had been for several years prior to that date, in the practice of medicine and surgery, and that he held himself out as competent to practice in surgery and medicine. At that time the plaintiff below was suffering severe pain in her right side, and accompanied by her husband, called at the office of Dr. Gillette, plaintiff in error, to consult with him as to the cause of the pain and its treatment. After some inquiries and external examination, the doctor pronounced her ailment appendicitis, and that an operation would be necessary to relieve her suffering and its canse. For this purpose she would have to go to a hospital. The cost of the operation and treatment was then discussed, and the ability of the husband to pay was inquired into, and he being a teamster and not earning large wages, it was agreed that the charges for the operation and subsequent necessary treatment would be $25.00, which might be paid as he was able, or as the husband claims, soon as his wife was cured; and as the wife states it: “I will take your case and attend to your wife for $25.00.” The hospital charges were not included in this price.

An understanding as to compensation having been reached, it was arranged that the woman should go to the hospital, which she did on November 2, 1897, and on the next day, the plaintiff in error performed an operation for appendicitis, after and while the patient was under the influence of an anaesthetic.

After the abdomen had been opened in the region of the appendix, for the purpose of absorbing liberated blood, plaintiff in error placed in the cavity a cheesecloth sponge, which consisted of seven or eight layers of cheese-cloth, each two by four inches. After an examination of the appendix it was found in a healthy condition, but there were indications that required an examination of the pelvic region. The incision made to reach the appendix was then closed, leaving the cheese-cloth sponge in the cavity. In closing the incision the peritoneum was stitched with kangaroo tendons, and the muscles and skin with silkworm gut. There was no drainage made for the wound. Next, an incision was made in the median line between the umbilicus and pubes, in the abdominal cavity. This was two and a half to three inches from the place of the first incision, and there was found a tumor, or -more accurately speaking, a hematoma, resulting from an extra uterine pregnancy. This was removed and cavity cleansed and closed, and the patient put to bed in the hospital where she remained about five weeks. She was not conscious during either operation, and did not know of the second, until several 'days thereafter.

About the tenth day she felt a -severe pain in Eer side, and a sensation like the bursting pf the closed incision. The plaintiff in error was called and informed of what had occurred. The wound was discharging pus so as to saturate layers of cotton; he said he had been looking for that, and that it came from the tendon used to sew up the wound; that the tendons would soon run out and then the incision would heal. She was visited at the hospital daily, perhaps, while there, and on December 5, 1897, she was removed from the hospital to her home. The pus continued to run from the first incision, and in about two weeks the doctor was called to the residence of plaintiff, because of her suffering, and looked at the side and saw its condition, and stated to her, “that it (the wound) was coming along all right; just as soon as that tendon is absorbed it will heal up — that is what is doing it.”

This conversation occurred about December 20, 1897. The'doctor did not call again until the following March, 1898. During this interval, the discharge of pus continued, and increased so that it would saturate several thick cloths each day. On the visit in March, 1898, the following conversation is said to have occurred, when he asked the patient as to her condition: “Well, doctor, I don’t seem to get any better; .it runs just the same as it did. How soon will it run out?” to which he replied: “That I can’t .tell. Sometimes it takes longer than others, sometimes that tendon is absorbed in three months, and sometimes it takes longer. If you will just have patience it will run out, and it will heal up, and you will be all right.”

In April following, the woman, with her husband, called at the office of the doctor, where she informed him that her side was no better — was still discharging; at which he expressed some surprise, but advised patience again, and said that the tendon would run out. He then said to the husband that he ought to pay him some money for his services, and the husband replied, that he would get his money when the wife got well. The doctor proposed that he would take the tendon out, and the wound would then heal, and to this end they were requested to meet him at the Hospital the next day which they did. He advised them he could probe for the tendons without the use of anaesthetics and that she need not remain at the hospital. An attempt was made to remove the tendon by probing but without success, and he then assured them that it would run out if left alone, and that it was not necessary to open the old incision; and assured them again, that if they would but have patience the tendon would run out. This was near April 15, 1898. The evidence tends to show that the patient relied upon these assurances and went home, and the discharge continued unabated during the summer, with increasing suffering. The wound was dressed twice a day, the thick, greenish discharge, saturating the cloths applied to it.

In the early part of November, 1898, the plaintiff, in company with a neighbor lady, went to the office of plaintiff in error. He inquired as to how she was getting along,, to which she replied: “Well, doctor, I am not getting along very well.” He said: “Is not that healed up yet?” I said: “No, sir, it is not.” He remarked: “You take a chair and I will be at leisure in a minute.” After that he called Mrs. Tucker into his private office and said: “Isn’t there any change in that?” She answered that it was about the same, when he rejoined: “It is funny that it don’t get better.” At this point Mrs. Tucker said to him, that if he had done his work right, she would have been well. This remark angered him and he said: “Well, if that is the way you feel about it, Mrs. Tucker, you can get right out of my office; I wouldn’t do any more for you if I could.” He ordered both Mrs. Tucker and her companion from his office, and they left under a threat that an officer would be called to eject them.

The language of the foregoing interview clearly shows, that up to that time the doctor recognized Mrs. Tucker as his patient and entitled to his treatment and advice.

The discharge of purulent pus increased and the condition grew worse. In January, 1899, Mrs. Tucker called another physician. After some treatment without apparent benefit, the second physician decided that some foreign substance had been left in the*cavity at the-first operation, and on April 12,1899, he operated by opening up the old incision and there found the cheese-cloth sponge, which plaintiff in error had left within when he closed it.

This demonstrated that the kangaroo tendon had not been the source of the trouble, as the doctor had assured them. We therefore find from the facts stated and kindred facts found in the record, that the relation of physician and surgeon existed between these parties from November 2, 1897, until he dismissed her from his office early in November, 1898. The patient during all that time sustained towards the surgeon a relation of peculiar trust and confidence, and when appealed to for relief and encouragement, he assured her and assuaged her doubts by saying, that only patience was needed to bring an entire recovery from the effects, not of appendicitis, but from the results of the incision vainly made for its treatment. There was an agreed consideration for not only the operation itself, but for such treatment, skill and care as might be necessary thereafter, and the engagement was such that the law implies a promise on the part of the surgeon, the plaintiff in error, that for the operation and subsequent necessary treatment, he would use due care and diligence to the end that a recovery might be had. This obligation arose in the contract of employment, and as a matter of law, and the obligation existed as long as the relation of patient and physician and surgeon continued. In the engagement of the plaintiff in error, as a surgeon, he assumed to exercise the ordinary care and skill of his profession, in the light of the modern advancement and learning on the subject, and became liable for the injuries resulting from his failure to do so. See Geiselman v. Scott, 25 Ohio St., 86. And the rule is stated in Craig v. Chambers, 17 Ohio St., 254, in the following form: “The implied liability of a surgeon, retained to treat a case professionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care or diligence in the execution of his employment . * * .”

No promise to effect a cure is implied, but due diligence, care and ordinary skill are implied undertakings. See Grindle v. Rush, 7 Ohio (part 2), 123-5. Moreover, we hold the proposition to be sound, that this degree of skill and care is to be exercised, not only in performing the operation, but also in the subsequent necessary treatment following such operation, unless the terms of employment otherwise limit the service, or the surgeon give the patient notice, that he will not or cannot afford the subsequent treatment. We tliink this proposition needs no argument for its support.

However, we find a pointed authority in the case of Williams v. Gilman, 71 Me., 21. While that case involved the conduct or misconduct of e. veterinary surgeon, we have no doubt its doctrine may be applied to the conduct of surgeons practicing their profession upon a human being. The syllabus of that case is: “In an action to recover damages caused by the alleged negligence and unskillfulness of a veterinary surgeon in gelding a colt: Held, that instructions to the jury, that it was the duty of the defendant to give the colt such continued further attention, after the operation, as the necessity of theicase required, in the absence of special agreement, or reasonable notice to the contrary, were correct, though the declaration only alleged want of care and skill with reference to the operation itself.”

In the opinion found on pages 22 and 23, the court say: “It is true, the declaration only alleges a want of care and skill on the part of the defendant with reference to the operation itself; but an allegation of negligence in this respect, would be sustained by proof that the defendant failed to use such appliances, or prescribe such treatment as to one who exercised reasonable skill and care in his calling were obviously necessary to preserve the colt from injury resulting from the operation. Without some order from the plaintiff to the contrary, or some notice from the defendant, or agreement of parties, limiting the defendant’s liability and specifying to what extent his services were to be required and rendered, it was a part of the duty of such a practitioner, incident to the performance of the operation itself, to direct what should be done to prevent injurious results that might naturally follow, and to give his personal attention to such matters, so far as they fell within the ordinary scope of a veterinary surgeon’s calling. Proof that he failed in these respects would sustain the allegation that he was guilty of negligence in his conduct with reference to the operation which he had been employed to perform.”

In an earlier case, Ballou v. Prescott, 64 Me., 305, we find another decision on the physician’s duty to a patient. The syllabus says: “Though the language used and the effect of it, are questions of fact for the jury, in controversies relating to a contract by parol, yet it is also true that in many cases, the law will infer a definite, though perhaps implied contract from certain admitted facts. At least it will infer certain elements as belonging to particular contracts, or impose specific duties in connection with, and growing out of special undertakings, although these are entered into by parol. Especially is this true of contracts growing out of an employment quasi public in nature, like that of a professional man. Thus, the care and skill which a professional man guarantees to his employer, are elements of the contract into which he enters by accepting a professional engagement, So, continued attention to the undertakings, so long as attention is required, in the absence of any stipulation to the contrary, is equally an inference of the law, * * * and he is bound to use ordinary care and skill, not only in his attendance, but in determining when it may be safely and properly discontinued.”

This, we believe, is a sound and salutary rule to govern the relation existing between the patient and the surgeon, who practices his profession and undertakes the serious operation described in this record. If such care is due to a dumb animal, it is surely due to a human being. There was no limitation in the services proffered and engaged, and no notice of an intended limitation given the patient, and indeed, none is claimed in this case, until the surrender of the case at the surgeon’s office in November, 1898.

The action of Mrs. Tucker, which is now before us, was commenced in the lower court on June 27,1899— not eight months from the day on which plaintiff in •error severed his connection with the case.

In view of these facts, and the nature of the engagement and duties of plaintiff in error, when did the statute of limitations begin to run against the cause of action of Mrs. Tucker? From the day when the incision was closed leaving the cheese-cloth sponge within the cavity? Or, from the day when the relation of' patient and surgeon ceased, the sponge still being in the cavity? If from the date of closing the wound, which was November 3, 1897, the trial court was right in telling the jury the plaintiff’s right of action was barred, when her suit was commenced. If from the date when the surgeon dissolved his connection with the case, her suit was in ample time.

The statute applied by the trial court is section 4983, Revised Statutes, which is: “Within one year: An action for libel, slander, assault, battery, malicious prosecution, false imprisonment or malpractice.” This section is to be read with section 4979, which is: “Civil actions other than for the recovery of real property, can only be brought within the following periods, after the cause of the action accrues.”

So, the other form of the inquiry is, when did the cause of action of Mrs. Tucker accrue? The plaintiff in error contends it accrued, if at all, on November 3, 1897, and so the court instructed the jury.

If the foregoing views which we have expressed, as to the nature of the surgeon’s engagement and obligation are sound, it would seem that the court was wrong in its application of the above statute to the facts of the case. We do not agree with counsel for defendant in error that the case made in the petition was an action on the contract, and therefore governed by the six-year limitation. Rather, it was an action to recover for breach of contract, for negligence in performance of the contract, or a breach of the terms of the contract which the law implies. It is contended, for plaintiff in error, that the action sounds in tort and not on contract, and that the surgeon being charged with a tort or wrong, the cause of action accrued when the tort or wrongful act was committed.

We believe that the situation is covered by Addison on Torts, 13, Avhere it is said: “A tort may be dependent upon, or independent of contract. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on contract; so that an action ex contractu for the breach of contract, or, an action ex delicto for the breach of duty may be brought at the option of the plaintiff.” See Staley v. Jameson, 46 Ind., 159.

Therefore, if we call malpractice a tort in this case, it is a tort growing out of a breach of contract which the law implies from the surgeon’s employment and undertaking to perform the operation. We have seen that it was a continuous obligation and recognized by the law, and it was alive and binding so long as the relation of physician and patient subsisted. If so, it was the ever present duty of the surgeon to remove the sponge from the body of the patient. It was a constant and daily obligation to use ordinary skill and care, and if by omission or negligence he had left a foreign substance within the walls of the inch sion at the operation, it behooved him to afford timely relief. Neglect of this duty imposed by a continuous, obligation was a continuous and daily breach of the same, and as the facts show, caused continuous, increasing, daily and uninterrupted injury.

Should she have brought her action immediately following the sewing up the walls enclosing the sponge? If she had done so, there were as yet, no injurious consequences, and but nominal, if any damages, could have been recovered. The injury consisted not so much in leaving the sponge within the cavity, as negligently, continuing it there, or, allowing it to remain there from day to day for about a year and until he dismissed her from his attentions. The grievance of the plaintiff was not alone confined to the negligence in the operation, but also in the painful consequences which followed, and which, as. he repeatedly assured her, would soon disappear, if she Avould but patiently wait.

In what we have said and now say, it is Avholly immaterial whether the patient knew of the true source of her trouble or not. We do not, in any degree, place our conclusions on the fact that for more than a year the plaintiff was in ignorance, as to the sponge remaining in the wound. On the contrary, we are dealing with her rights under the contract, for the breach of which she has sued, and the cause of action did not so much accrue of the date of the negligent operation, as on account of the continuous breach of duty which inflicted the injurious consequences. In other words, that the statute will run from the date of the injuries,, rather than from the date of an event which resulted in the injuries.

At this point we again refer to the case of Craig v. Chambers, 17 Ohio St., 254. In' that case, Chambers and his wife Jane, brought suit against Craig, a surgeon, for negligently and unskillfully setting the dislocated shoulder of the wife and for negligent treatment of the injury.

The plaintiff in that case excepted to the court charging the jury “that the plaintiff would not be entitled to a verdict, unless the evidence satisfied the jury that some portion of the injury of which plaintiff complains, was the result of some want of proper skill, diligence or attention of the defendant; or that the plaintiff was in some way damaged by such negligence.”

Speaking of this and other instructions, White, J., on page 260, says: “Her action is founded on the breach by the defendant, of the duty which he owed her, or of the contract to be implied between them arising from the employment. But the implied liability on the part of a professional man, in our opinion, goes no further than that he will indemnify his employer against any injurious consequences resulting from his want of proper skill, care or diligence in the execution of his employment. Therefore, where there is no injury, there is no breach; and the evidence must warrant the jury in inferring injury before they can find a breach. And this conclusion we believe* to be supported by the authorities.”

On page 261, of the same opinion, it is said of the charge concerning plaintiff’s injuries: “But in view of one part of the argument of the counsel of the defendant in error, it is proper to say, that we suppose that any want of the proper degree of skill or care which diminishes the chances of the patient’s recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have, been, if due skill and care had been used, would in a legal sense, constitute injury.”

See also Bank v. Waterman, 26 Conn., 324, where it is held that “when an injury however slight, is complete as a legal injury at the time of the act, the period of limitation at once commences, but when the act is not legally injurious until certain consequences occur, the period takes date from the consequential injury.” See Shear. & Redf. on Neg., section 613.

If the doctrine is sound, and we think it is, the mere closing of the incision in question over the sponge was not the plaintiff’s cause of action, if no injurious consequences followed. But if evil consequences followed, and plaintiff was injured, her cause of action accrues when her injuries occurred; and if these injuries blended and extended during the entire period the surgeon was in charge of the case, her right of action became complete when the surgeon gave up the case without performing his duty.

Indeed, it would be inconsistent to say, that the plaintiff might sue for her injuries while the surgeon was still in charge of the case and advising and-assuring her that proper patience<would-witness a complete recovery. It would be trifling with the law and the courts to exact compliance with such a rule^ in order to have a standing in court for the vindication of her rights. It would impose-upon her an improper burden to hold, that in order to prevent The statute from running-against her right of action, she must sue while she-was following the advice of the surgeon and upon which she all the time relied.

We are cited to certain cases and textbooks by plaintiff in error, which are supposed to be in conflict with these views. Among these cases are Kerns v. Schoonmaker, 4 Ohio, 331; Fee’s Admr. v. Fee, 10 Ohio, 470; Williams v. Pomeroy Coal Co., 37 Ohio St., 583. But we think an examination and comparison-of those cases, with facts and principles involved in the case at bar, will readily show that they are not opposed to our position here. Kerns v. Schoonmaker is a case where an action was brought to recover damages against the defendant for negligence and omission of duty as a justice of the peace. The negligence-alleged in the declaration was, that on April 25,. 1825, Stewart confessed a judgment in favor of Kerns before the justice. On April 28th, Stewart offered one Elliot, as bail for stay of execution, who was accepted as such by the justice; but the entry on the docket was so carelessly and informally made that Elliot was not legally bound thereby. The judgment debtor died insolvent before the supposed stay of execution expired, and when Elliot was prosecuted on the-stay bond, the court held it invalid and he was discharged. In the suit against the justice the amount of the judgment, interest, costs and expenses were demanded. The justice plead' not guilty and the one year bar of the statute of limitations. As to when • the statute began to run, the court say on page 333: “It is unnecessary to determine the precise moment when the statute did attach, for we entertain the opinion that no later period can be selected than the institution of the suit-against Elliot. Admitting that the plaintiff might reasonably expect Elliot to fulfill his supposed recognizance and pay the debt,.yet when he evinced his intention not to be bound, the plaintiff’s remedy against the justice was complete. * *

It is seen from this case, that the statute in bar did not necessarily commence with the negligent act of the justice in making entry of the stay bond, but that it might be counted as commencing with the resistance of Elliot tvhen sued on the invalid bond.

In Fee’s Admr. v. Fee, supra, it Avas decided that “a fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations.”

As before stated, ignorance or concealment of the source of the injury of Mrs. Tucker is not the ground of our opinion, and hence Fee v. Fee is of no weight here. The same observation may be made as to part of the decision in Williams v. Pomeroy Coal Co. That Avas an action for trespass committed by defendant in making an excavation on land under lease, which he Avrongfully extended under the land or lot adjoining, and the salient facts decisive of that case are stated by White, J., on page 589 as follows: “The defendant in the present case had no estate or interest in lot 1222, further than the right to mine the coal therefrom. This he accomplished in 1862, and surrendered the premises. He had no authority from the owner of the fee, nor from Horton, his immediate lessor, to mine over into lot 1223; and at the time of the flowage of water from the abandoned mine into the mine of the plaintiff, he had for more than five years ceased to have any interest in lot 1222, or any right of entry thereon.” Then the court proceeds to say the action of trespass could not be maintained, because the plaintiff at the date of the commission of the trespass Avas not the owner of the land upon Avhich it was committed, and had he been such owner, the action would have been barred. But in previous language of the opinion the learned judge draws a distinction between a single trespass and the continuing of something wrongful upon the premises of the plaintiff; and the authorities which he cites more properly reinforce our position than the contention of plaintiff in error.

Counsel for plaintiff in error cite also from text writers, among others, Wood on Limitations, section 177, to the effect “that in cases of tort, the statute usually commences to run from the date of the'tort, and not from the occurrence of actual damage.” This as to a single tort or wrong. But it is well to note tHat in section 178, the same author has more to say and it is this: “A breach of public duty may not inflict any direct immediate wrong on an individual; but neither his right to a remedy nor his liability to be precluded by time from its prosecution, will commence till he has suffered some actual inconvenience. But it is otherwise where there is a private relation between the parties where the wrongdoing of one at once creates a right of action in the other, and it may be stated as an invariable rule that when the injury, however slight, is complete at the time of the act, the statutory period then commences; but when the act is not legally injurious until certain consequences occur, the time commences to run from the consequential damage, whether the party injured is ignorant of the circumstances from which the injury results or not.” To sustain and illustrate this proposition the .author cites important cases.

A careful perusal of Buswell on Limitations and Angelí on same subject, also cited, will find the same distinction made. In most, if not all of the authorities cited and relied on to support views adverse to ours, the tort or wrongful act was complete as a single transaction.

This Court has spoken as to the application of the statutory bar in Perry County v. Railroad Co., 43 Ohio St., 451. The action was brought by the county to recover of the railroad company the cost of constructing a new bridge in lieu of one which has been destroyed by the railroad company in 1871. Full restoration was made by the county in 1878. Concerning the plea of the statute of limitations by the company, Owen, J., on page 455, says: “The plea of the statute of limitations which the demurrer interposed to the petition is untenable. From the time the injuries complained of were committed, and at least to the time the commissioners made full restoration, the duty of defendant to restore the bridge to its former condition of usefulness and safety was a continuing and subsisting obligation, and each day’s failure to make full restoration was a fresh' breach of such obligation; and lapse of time cannot avail to interpose a bar to recovery * * * .” We here call attention, without quoting, to Railway Co. v. Franz, 43 Ohio St., 623.

These two cases, and the authorities therein cited, generously support the conclusion we have reached. The facts in the case at bar show a continuous obligation upon the plaintiff in error, so long as the relation or employment continued, and each day’s failure to remove the sponge was a fresh breach of the contract implied by the law. The removal of the sponge was a part of the operation, and in this respect the surgeon left the operation uncompleted. See Akridge v. Noble, 41 S. E. Rep. (Ga.), 78, where this-is expressly held.

Another trial will afford plaintiff in error another opportunity to introduce all his evidence.

We have not been able to reach a unanimous judgment in this case, but our number is sufficient to affirm what we regard as sound judgment.

Judgment affirmed.

Btjkket, O. J., and Skear, J., concur.

Davis, J.,

dissenting. The judgment of the circuit court stands because this Court is equally divided as to its affirmance or reversal. Inasmuch as the case is reported and may be understood to lend the authority of this Court to the judgment of the circuit court, a statement of the grounds which move one-half of the Court to vote for a reversal of the judgment seems to be required.

Under Section 4983, Revised Statutes, an action for malpractice must be brought within one year after the cause*of action accrues; and the trial judge very properly directed a verdict for the defendant on the facts appearing in the evidence. This action was commenced on June 27, 1899, while the last professional service which was rendered by the defendant, or which was requested of him, was on or about April 5, 1898. On that day the defendant made an examination of the plaintiff at the hospital and recommended that the wound made by the operation should be reopened. The plaintiff was reluctant to have that done, and finally concluded not to have it done. From that day until November, 1898, so far as the evidence shows, the defendant did not treat the plaintiff, nor was there any communication between them, although as said by Price, J., in the foregoing opinion in this case, “the discharge continued unabated during the summer, with increasing suffering,” the wound being dressed twice a day and the' discharge saturating the cloths applied to it. In November, 1898, the precise date does not appear, the plaintiff went to the defendant’s office and charged him with malpractice. Her words, as testified by herself, were: “Well, doctor, it seems to me that if you had done your work right I would have been well.” That was about all there was of that conversation. There was no medical treatment asked for or given. So that the defendant's professional connection with the surgical case ended on April 5, 1898, if not before. This was fourteen months prior to the commencement •of this action, and on any tenable theory of the case the action was clearly shown to be barred by the statute of limitations.

The circuit court seems to have taken the view that it wus the duty of the defendant to follow up the plaintiff and to see that the incision made in the operation had healed, and that because “the wound was not healed she was still his patient and he still owed her the duty of a physician and surgeon who had performed an operation ;” and hence the conclusion that “her cause of action was not complete and the statute did not begin to run until such relation ceased at his office in November, 1898.” Tucker v. Gillette, 12 Circ. Dec., 401; 22 C. C. R., 664. In order to sustain this strained conclusion the court calls attention to the failure of the defendant to discover and remove the foreign substance which he had left in the wound at the time of the operation, and designates it as a continuing act of negligence on his part, “a continuing act of negligence, udiich increased rather than diminished as time went on, and it became more evident that there wrns some foreign substance in the wmúnd which should be removed.” But the ground of this •action was not, and could not be, negligence in the •after treatment. If leaving the sponge in the body of the patient at the time of the operation was harmless, and injury resulted to the patient only through such negligence in the after treatment, then an action might be grounded on such negligence. Such were Ballou v. Prescott, 64 Me., 305, and Williams v. Gillman, 71 Me., 21, cited in the foregoing opinion by Price. J., although the statute of limitations was not. involved in either of those cases. But the line of authority is unbroken that if the original act of negligence causes damage, although only nominal in extent, a cause of action accrues eo instante¡ and that consequential damages may be recovered thereon up-to the time of the trial. Of course it follows that the-statute of limitations begins to run the moment a. right of action accrues, and it is so expressly provided by our statute; and it cannot be deferred or held in abeyance because the full extent of the injury is not at once apparent, nor because the plaintiff was ignorant of the negligent act which caused the injury. This principle applies equally to cases quasi ex contractu and cases purely ex delicto. Upon these well established principles it is obvious that in cases in which an act of negligence causes damage, the cause of action cannot be split up into two or more causes of action, and therefore when suit is brought to recover damages upon an act of negligence which is barred by the statute of limitations, it cannot be taken out of the statute by a subsequent act of negligence which merely aggravates the damage already accrued.

See generally on the propositions above stated, Angell on Lim., sections 136, 141, 298, 299; Wood on Lim., sections 122, 178, 179; 2 Greenleaf Ev., section 433; Lattin v. Gillette, 95 Cal., 317; Raynor v. Mintzer, 72 Cal., 585; Schade v. Gehner, 34 S. W. Rep. (Mo.), 576; Gustin v. County of Jefferson, 15 Ia., 158; Kerns v. Schoonmaker, 4 Ohio, 331; Fee v. Fee,. 10 Ohio, 470, 471; Lathrop v. Snellbaker, 6 Ohio St., 276. These Ohio decisions have in no sense been qualified or departed from.

There are several cases which so clearly illustrate the views which I have expressed above, that I calí especial attention to them. In Lattin v. Gillette, 95 Cal., 317, cited above, and which was an action for negligence in abstracting a title, the court says, page 320: “The running of the statute was not suspended■ by the fact that the plaintiff did not ascertain the error in the certificate, or by the fact that the existence of the error was not determined by the superior court until more than two years had expired, and it was. held that the statute of limitations begins to run in an action for misconduct or negligence from the date-when the misconduct or negligence was completed, and that it is immaterial whether the negligence out of which the cause of action arises is the breach of an implied contract, or the affirmative disregard of some-positive duty.” It was also held in that case thpt although the entire damage resulting from such negligence may not have been known until the right to a recovery is barred, yet the time within which an action may be brought is not thereby prolonged.

The leading case of Wilcox v. Plummer, 4. Pet. (U. S.), 172, is strongly in point. The plaintiff placed a promissory note in the hands of Plummer for collection. He instituted a suit against the maker but neglected to sue the indorser. The maker was insolvent and Plummer afterwards sued the indorser, but ineffectually, - by reason of another-act' of negligence, a fatal misnomer of the plaintiff. A judgment of non-suit was finally rendered in this action, and in the meantime the action against the indorser was barred by the statute of limitations. The question was whether the statute of' limitations commenced to run when the error was committed in the commencement of the suit against the indorser, or whether it commenced from the time the plaintiffs were nonsuited in their action. It was. held that the statute began to run from the time of the committing of the error by misnomer in the action against the indorser. Mr. Justice Johnson, in delivering the opinion of the court, said: “The only question in the case is, whether the statute runs from the time the action accrued, or from the time that the damage is developed or becomes definite. And this we hardly feel at liberty to treat as an open question * * * . Nor is it analogous to the case of a nuisance; since the nuisance of to-day is a substantive cause of action, and not the same with the nuisance of yesterday, any more than an assault and battery * * * . When the attorney was chargeable with negligence or unskillfulness, his contract was violated and the action 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 that the damage is not the cause of action.”

Coady v. Reins, 1 Mont., 424, was, like the present case, an action against a surgeon for malpractice in setting and treating the plaintiff’s dislocated and fractured arm and elbow, on February 28, 1868. The “continuing negligence” in the after treatment of the case seems to have made no impression on the court, which said: “The gist of the action in this instance is the negligence and unskillfulness of breach of duty as laid in (the complaint, and not the injury or damage consequent thereon. If such actions were commenced immediately upon a person becoming chargeable in such a case, it is probably true that no more than nominal damages could be recovered, yet it is clear that proof of actual damages may extend and embrace facts occurring and growing out of the injury even up to the verdict itself. But the statute in cases of this nature begins to run, regardless of the form of action, whether case or assumpsit, from the time of the negligence or breach of duty. And in this case, under the act in force at the time of said negligence or breach of duty, it must be held to have commenced to run from February 28, 1868,” which was the time when the operation was performed.

In Moore v. Juvenal, 92 Pa. St., 484, it was held that when the declaration in an action against an attorney for malpractice, alleges a breach of duty and a special consequential damage, the breach of duty, and not the consequential damage, is the cause of action, and the statute runs from the time of the former and not from the time the special damage is revealed or becomes definite. It was also held that the fact that the defendant continued to act as attorney for the plaintiffs after he had violated his implied contract with them, does not suspend the operation of the statute.

In view of these well settled principles, it would be impossible to sustain the judgment of the circuit court, and impossible to reach any other conclusion than that at which the court of common pleas arrived. Hence the circuit court was driven to its invention of “a continuing act of negligence,” which for its novelty would be patentable if it were not entirely useless. I have diligently sought for authority for this strange doctrine and have not found any, and have carefully examined all the cases cited in the foregoing opinion with no better result. The nearest approach to it which has come under my observation is in the class of cases represented by Board of Commrs. v. Pearson, 120 Ind., 426, and Bank of Hartford Co. v. Waterman, 26 Conn., 324; bnt these cases are broadly distinguishable from this theory of'“a continuing negligence.” They hold that although the negligence complained of had been committed long enough before the suit to be barred by the statute of limitations, yet if no damage whatever ensued until a time within the statute, no cause of action accrued against which the statute might run. Board of Commrs. v. Pearson, supra, was a case where a bridge was negligently constructed, but no accident happened therefrom for thirteen years thereafter. In Bank v. Waterman, supra, an officer who had undertaken to attach real estate and made return that he had done so, in fact, failed to do so. The error was not discovered until the debtor had failed and no property could be found upon which to levy. In an action on the case against the officer the statute of limitation was pleaded, and it was held that the cause of action did not accrue until, by failure to obtain satisfaction of his execution, he had sustained actual damage. In neither of these cases does there appear even a hint of this theory of “a continuing negligence,” and in the latter case, even the conclusion which was announced, was combated by Ellsworth, J., in a most vigorous and impressive dissenting opinion.

As was said by the Supreme Court of the United States, in Wilson v. Plummer, supra, there is no analogy between an action for malpractice and an action for a nuisance, “since the nuisance of to-day is a substantive cause of action and not the same with the nuisance of yesterday, any more than an assault and battery.” Hence’ the doctrine of a continuing trespass or nuisance cannot be invoked here. The doctrine that every continuance is a new nuisance for which a separate action will lie, applies only to nuisances of a transient rather than of a permanent character. “But while this is the rule, * * * yet, when the original nuisance is of a permanent character so that the damage inflicted thereby is of a permanent character, and goes to the entire destruction of the estate affected thereby, or will be likely to continue for an indefinite period, and during its existence deprive the landowner of any beneficial use of that portion of his estate, a récovery not only may but must be had for the entire damage in one action, as the damage is deemed to be original; and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the statute of limitations begins to non from the time of its erection against the oioner of the estate or estates afected thereby." Wood on Lim., section 180. It was on this principle that Valley Ry. Co. v. Franz, 43 Ohio St., 623; Perry Co. v. Railroad Co., 43 Ohio St., 451; and Williams v. Coal Co., 37 Ohio St., 583, cited in the foregoing opinion, were decided. If there is any real analogy between cases of nuisance or trespass and cases of malpractice, it seems to me perfectly clear that a discriminating analysis would require the application here of the rule last stated; for the gist of this action is the allegation in plaintiff’s petition that the defendant negligently and without the knowledge of plaintiff closed the opening made in performing the operation, without removing the cheese-cloth sponge therefrom. It is true that it is also alleged that the defendant for more than twelve months thereafter negligently permitted the cheesecloth sponge to remain in the plaintiff’s abdomen; but the injury was complete so far as concerns the defendant when he closed the wound and did not remove the sponge. If the defendant had never seen the plaintiff after the operation, the injury was permanent and complete so far as the defendant’s agency and liability was involved. If any injury whatever ensued from delay in discovering and removing the sponge it was merely incidental and consequential to the principal act of leaving the sponge in the* abdomen when the operation was completed. Stated in slightly different language, but the same in effect, the charge is that the defendant permitted the sponge to remain in. the abdomen when he closed the incision, and he permitted it to remain afterwards as long as he attended her. In this way of stating the case, it is clear that the wrong inflicted by the defendant was complete on the day of the operation, and the cause of action then accrued on the principles hereinbefore stated, unless the defendant is to be held liable in another cause of action for not knowing or not discovering that the sponge was there. But this could not be, for whatever injury the plaintiff sustained was the result of or consequential to, the wrong inflicted in the beginning, and hence a recovery for that would be a bar to a recovery for the other. Further analysis, it seems to me, would not make the case any plainer. A perfect cause of action accrued at once on the day of the operation, November 3,1897.

The argument that the defendant had entered into a contract by which it became his duty to continue to attend the plaintiff until she should be well, or until the plaintiff discharged him, and that therefore the statute would not begin to run in his* favor until his service was ended is equally fallacious. The rule is the same whether the action sounds in contract or in tort, that is, the statute of limitations begins to run in the instant' that a cause of action accrues, and a cause of action accrues in tlie instant that damage is incurred, although at first the damage is only nominal. Angell on Lim., sections 136, 298; Wood on Lim., sections 177, 178, 179. And in Craig v. Chambers, 17 Ohio St., page 261, Judge White, delivering the opinion of the court, said: “It is proper to say, that we suppose that any want of the proper degree of skill or care which diminishes the chances of the-patient’s recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury.” However, it seems to be a mere waste of time to discuss the question whether this action is ex contractu, quasi ex contractu, or ex delicto, for the statute provides that malpractice, whether it belong to one or another of these classes, is barred in one year from the time the cause of action accrues. If the surgical operation was skillfully and properly performed in all respects and no injury resulted therefrom, the statute would run from the time of a subsequent negligence and injury for then, and then only, would a cause of action accrue; but the case we are now considering is not such a case. It is true that it is said in Angelí on Lim., section 120, that “when there is an undertaking which requires a continuation of services, the statute does not commence running until they can be completed;” but that remark was not intended to apply to actions to recover damages for negligence, whether the negligence be the breach of a contractual duty or any other duty. It applies only to actions purely ex contractu, and all of the cases cited by the author on this point, are cases in which the suit was for compensation for services, and in which the statute was used as a defense.

Wilson v. Plummer, supra, and Moore v. Juvenal, supra, were cases in which the services contracted for were not complete at the time of the injury. Thei theory involved in the misleading phrases “a continuing negligence,” “a continuing wrong,” “a continuing obligation,” “a continuous contract,” is not only contrary to all authority, but from my point of view it is utterly absurd when tested in the light of established principles.

For the reasons stated I am of the opinion that the judgment of the circuit court should be reversed and that of the court of common pleas affirmed.

Shauck and Crew, JJ., concur in the dissenting opinion.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Gompf et al. v. Wolfinger et al. The State of Ohio ex rel. Young v. Hinckle.

      Supreme Court jurisdiction — Act of May 12, 1902 — Section 6710, Rev. Stat. — Judgment final under laws then existing — Statute cannot be retrospective, when — Act of October 22, 1902— Review of circuit court judgment by Supreme Court — Royer act — Interpretation of law.

    1. The act of May 12, 1902, to amend Section 6710, Revised Statutes, not being by its terms applicable to causes of proceeding then existing, did not take from this court jurisdiction to review such judgments which the circuit court had previously rendered as were subject to review at the time of their rendition.
    2. The effect of that act was to deprive this court of jurisdiction to review a judgment of the circuit court rendered after its passage and not coming within its terms. Slingluff et al. v. Weaver et al., 66 Ohio, St., 621, approved ana followed.

      3. A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted; and the act of October 22, 1902, to amend Section 6710, Revised Statutes, being incapable of a retrospective operation, does not confer upon this court jurisdiction to review judgments which the circuit court had , rendered prior to its passage and which were not subject to review under the provisions of the act of May 12, 1902.
    (Decided November 18, 1902.)
    [Cause No. 8055.] [Cause No. 8137.]
    Error to tlie Circuit Court of Marion county.
    ■On motion to dismiss.
    Error to the Circuit Court of Clark county.
    On motion to dismiss.
    For motion in former case, Messrs. Scofield, Durfee & Scofield; contra, Messrs. Crissinger & Guthery.

    For motion in latter case, Messrs. Stafford & Arthur; contra, Mr. D. F. Reinoehl.

      Mr. Chas. E. Burr also filed a brief in support of the latter motion, and Mr. John M. Sheets, attorney general, a brief against it.
   Shauck, J.

.Numerous motions have been- presented for the dismissal of causes pending here on error because our jurisdiction to determine them is supposed to have been taken away by the act of May 12, 1902, to amend Section 6710, Revised Statutes, by which appellate jurisdiction is conferred on this Court, and not restored by the act of October 22,1902, •amending the same section. The two motions in-< dicated in the title have been selected for report because they are believed to present all the questions upon the general subject which counsel have discussed.

In cause No. 8055, the plaintiff in error prays for the reversal of a judgment which the circuit court rendered against him before the passage of the act of May 12th, though the petition in error was not filed here until after its passage, but within four months after the rendition of the judgment.

In cause No. 8137, the plaintiff in error prays for the reversal of a judgment rendered by the circuit court after the passage of that act, it being an affirmance of a judgment of a court of common pleas. In Slingluff et al. v. Weaver et al., 66 Ohio St., 621, the general effect of the act of May 12,1902, was determined to be “to deprive this court of jurisdiction to review any case in error where the judgment of the lower court has been or may be rendered since the passage of the act, and not coming within its terms.” Applying' this view to the case then under consideration, we decided that we were without jurisdiction to reverse a judgment rendered by the circuit court on June 6,. 1902. That case.did not require a consideration of the effect of the act upon our jurisdiction to reverse a judgment rendered before its passage but not actually brought here by the filing of a petition in error. Counsel for the motion to dismiss cause No. 8055, present the view that the act of May 12th, being strictly remedial, may have such operation as the legislature has provided, and that the third section of the act by which its effect is defined, excludes our jurisdiction in the present case. That section is: “Section 3.. This act shall take effect from and after its passage,, and shall apply to all causes of action existing, and actions pending at this time, in all courts inferior to. the Supreme Couit.” But the act amended and repealed section 6710, which, at the time of the rendi-. tion of this judgment, undoubtedly authorized its review. We shall, therefore, ascertain the true meaning of the third section, and the intended operation of the act, by considering its terms in connection with those of Section 79, Revised Statutes, by which the, general operation of statutes is prescribed. The pertinent provisions are: “Nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” It is obvious that this general section so defines the subjects upon which remedial statutes may operate as to distinguish actions and causes of action from proceedings and causes of proceeding. And, further, that it restricts the operation of the amendment of remedial statutes to such of the defined subjects as are named in the amending act. That a resort by petition in error to a court of superior jurisdiction for the reversal of the judgment of a court of inferior jurisdiction is a proceeding in contemplation of the general section, was determined in Insurance Co. v. Myers et al., 59 Ohio St., 332, the decision of that case depending upon the construction which should be given to the third section of the act of April 25, 1898, amending Section 6710, Revised Statutes. It gave to that act the same operation which is given to the act of May 12, 1902, by its third section. That decision may be cited as full authority for the conclusion that the judgment of the circuit court, whose reversal is sought in case No. 8055, was, on May 12th, a cause of proceeding within the meaning of section 79. Since the act of that date does not, in terms, apply to causes of proceeding, the right to prosecute the proceeding must, to satisfy the requirement of the general section, be regarded as continuing, notwithstanding the amendment.

The judgment, whose reversal is sought in cause .No. 8137, was not rendered by the circuit court until after the passage of the act of May 12,1902, and therefore it was not “a cause of proceeding existing at the time of such amendment.” The conclusion that jurisdiction to review the judgment was taken away by the act of May 12th, is required by the third proposition of the syllabus in Slingluff et al. v. Weaver et al., and justified by the opinion in that case.

But it is said that jurisdiction to review the judgment was conferred upon this court by the act to amend Section 6710, Revised Statutes, passed October 22, 1902, after the judgment of the circuit court was rendered. The act relied upon amends and repeals the act of May 12th, and it is admitted that it so amends section 6710 as prospectively to confer upon this court jurisdiction to review all judgments of the circuit court. It is also admitted that our jurisdiction in the present case would have been undoubted but for the act of May 12th. But in support of the motion to dismiss, it is said that the act of October is not retrospectively effective to confer upon this Court jurisdiction to review a judgment of the circuit court which was not subject to review when rendered. The intended operation of the act is described in its third section, which is as follows:

“Section 3. This act shall take effect from and after its passage, and shall apply to all causes of action existing, and to all prosecutions and proceedings, civil and criminal, and actions pending at this time, in all courts inferior to the Supreme Court, and shall also apply to all other such causes of action, prosecutions, proceedings and actions which were affected by the enactment and existence of the statute repealed by section 2 hereof, and as to all such causes of action, prosecutions, proceedings and actions, the right of commencing proceedings t© reverse, vacate or modify the judgments or final order therein, is hereby given and extended for thirty days from and after the passage of this act; provided, that nothing herein shall reduce the time allowed by Section 6723, Revised Statutes, for commencing any such last above mentioned proceedings.”

The acts of May and October*, 1902, were passed by the same general assembly, the former at a regular, the latter at an extraordinary, session. That the former act limiting the jurisdiction of this Court was regarded as an inadvertence, appears from the public history of the times, and particularly from the language employed in the third section of the act of Oc-' tober. The comprehensive terms of that section leave-no room to doubt that the general assembly intended' that it should operate to restore the jurisdiction of' this Court, which had been taken away by the act of May, and that the restoration should apply to judgments of the circuit court which had been rendered! in the meantime. If only a prospective operation of the act had been intended, there would have been no-occasion for the extension of time for commencing proceedings in error for thirty days after the passage of the act.

Was it competent for the general assembly to give to the act of October the retrospective operation! which it intended? In the briefs of counsel, and in very numerous decided cases, the validity of this and similar legislation has been denied for the several reasons that; (1) Such acts are not an exercise of legislative power, and therefore, not within the constitutional grant of .power to the general assembly. (2) That if within that grant, they contravene such limitations upon the exercise of legislative power as that imposed by section 28 of article 2 of the constitution of this state that “The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts.” (3) They would result in the conditional taking of property without due process of law. In an important and obvious sense, statutes providing for the review of judgments are remedial, and it is not to be doubted that rights are acquired subject to the authority of the general assembly to amend statutes Regulating remedies for the enforcement of such rights, if the statutes operate prospectively, and while proceedings are in fieri. A case illustrative of this doctrine is Rairden et al. v. Holden, 15 Ohio St., 207. In that case the court approved the definition of a retrospective law given by Mr. Justice Story in The Society v. Wheeler, 2 Gall., 139: “Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective; and this doctrine seems fully .supported by the authorities.” ’That definition has been generally approved and adopted. It was recently adopted by the Supreme Court of the United States in Sturges v. Carter, 114 U. S., 511. It would seem obvious that the statute under consideration operating retrospectively, would impair the vested right of a judgment creditor by imposing upon him a new obligation with respect to the judgment, and taking away utterly his vested right in the immunity of his judgment from review under the law as it stood when the rights of the parties were finally determined. To show the pertinency of numerous adjudicated cases, it is necessary to observe that, with respect to the present question, it is not practicable to distinguish between an appeal with a view to a trial de novo and a proceeding in error to review a judgment of an inferior court for error appearing upon its record. They are alike resorts to a jurisdiction which sections 2 and 6 of article 4 of our constitution denominate appellate, and they are equally effective to destroy the final character of the judgment rendered, by requiring the parties to bear the burden of a retrial upon questions of fact or of law, or both. A ■statute of this character was considered in Hill et al. v. Sunderland, 3 Vt., 507, and it was adjudged to be void. In the course of the opinion the question was propounded as suggestive of an inevitable answer: “When will be the end of strife if not when a judgment is rendered which is final by the laws then existing?” A judgment final when rendered is representative of property in its highest form, for there remains no condition or contingency to affect the vested right of the prevailing party. Attention to a few of the many harmonious cases will show that, for the reasons already stated, the act, if permitted to operate retrospectively, would affect rights which are so determined and established that it is not within the function of legislation to disturb them. In Stantford v. Barry, 1 Aikens, 314, an act to grant an appeal from a judgment previously rendered was held to be void “as being an exercise of power by the legislature, properly belonging to the judiciary.” In Atkinson et al. v. Dunlay, 50 Me., 111, a retrospective -operation was denied a statute providing for a review, the court observing: “Judgments may be subject to be revised according to laws existing at the time of their rendition. This is a fixed and settled qualification of rights vested under them. But within this exception there can be no higher title to any right or interest whatever than that which arises from a regular judgment of law.” Like legislation of a retrospective character was held invalid in Davis v. Menasha, 21 Wis., 491, the court concluding: “So that this enactment so far as this cause is concerned must be held invalid; both because it attempts to destroy vested rights, and also because it is an .exercise of power on the part of the legislature which belongs to the courts.” In Taylor & Co. v. Place, 4 R. I., 324, an act of the general assembly to open a judgment of the common pleas so as to permit garnishees to' file additional affidavits, was held invalid as. an exercise of judicial power. For like reasons enactments providing for appeals from judgments which were final when rendered were declared void in McCabe v. Emerson, 18 Pa. St., 111; Lancaster v. Barr, 25 Wis., 560; Griffin’s Exrs. v. Cunningham, 20 Grat., 31; Beaupre v. Hoerr, 13 Minn., 366; Wieland v. Shillock, 24 Minn., 345; The Germania Sav. Bank v. The Village of Suspension Bridge, 159 N. Y., 362; and Dorsey v. Dorsey, 37 Md., 64. Indeed the cases in which these doctrines are held or conceded, are so numerous that the labor of collecting them belongs appropriately to the compilers of digests. That the conclusions are uniform upon the proposition that a judgment which is final by the statutes existing when it is rendered is an end to the controversy, will occasion no surprise to those who have reflected upon the distribution of powers in such governments as ours, and have observed the uniform requirement that legislation to affect remedies by which rights are enforced must precede their-final adjudication. The act of October 22, 1902, can not have a retrospective operation.

The motion to dismiss cause No. 8055 is overruled,. that to dismiss cause No. 8137 is sustained.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    The Ashtabula Rapid Transit Co. v. Holmes.

      Action for personal injury — Alleged negligence of street railway —Passenger alighting from car — While latter in motion— Question of negligence of conductor or passenger — Charge to-jury — Duty of carrier of passengers.

    1. If a street car comes to a full stop for any purpose and a passenger is in the act of alighting, it is negligence for the conductor to start the car before such passenger has had a. reasonable opportunity to get off safely.
    2. But if the car does not stop, merely slacking speed sufficiently to permit a passenger to get on', the conductor, in the absence of notice of a passenger’s intention to alight, is not. bound to know that any passenger T. Ill attempt to get off, or is in the act of getting off, while the car is in motion.
    3. Where there is a conflict of evidence as to whether the car-stopped, or whether it only slowed up enough to allow a man to get on, and also as to whether the conductor had notice-of the plaintiff’s intention to alight, it is error to charge the-jury as follows: “If you find from the evidence in this case, that the car stopped or slacked up, for the purpose, sufficiently to let a man onto the same, and at the same time the plaintiff attempted to alight, then we say to you that it became and was the duty of the conductor of the car, before causing or permitting said car to go ahead, to use the highest degree of care consistent with the proper running of said car, to see and ascertain what, if any, other person or persons, might be getting on or off-the car at the time, other than, said man.”
    (Decided November 18, 1902.)

      Error to the Circuit Court of Ashtabula county.
    On July 11, 1898, the plaintiff in error owned and operated á street railway in the city of Ashtabula. On that day the defendant in error took passage on one of two attached cars. The car she was on was a trailer. She claims, and offered testimony tending to show, that she notified the conductor where she desired to alight, when she boarded the car, that as the car neared the point where she desired to alight she gave the usual sign for stopping to the conductor, who was then in.the center of the car and facing her; that thereupon the car was stopped, at which time a man got on the car, and that while she was getting off, the conductor, without giving reasonable time for her to alight, started the car and she was violently thrown to the ground and injured. It was claimed by the plaintiff- in error, and it offered evidence tending to prove, that the defendant in error gave no signal or any other notice to the conductor, or anybody else, that she wished to get off, that the car did not stop, that it slacked speed so as to enable a man to get on, and that when so slacking speed the defendant in error suddenly arose from her seat, stepped off and was injured, without the fault of the plaintiff in error. The court, at the request of the plaintiff, defendant in error here, among other things, instructed the jury as follows:
    “If you find from the evidence in this case, that the car stopped or slacked up, for the purpose, sufficiently to let a man on to the same, and at the same time the plaintiff attempted to alight, then we say to you that it became and was the duty of the conductor of the car, before causing or permitting said car to go ahead, to use the highest degree of care consistent'with the proper running of said car, to see and ascertain what, if any, other person or persons might be getting on or off the car at the time other than said man.”
    A verdict was returned for the plaintiff, and after a motion for new trial was overruled a judgment was rendered on the verdict, which judgment was affirmed by the circuit court, one judge dissenting. The above instruction to the jury is assigned for error.

      Messrs. Theodore Hall & Son, for plaintiff in error.

      Mr. R. W. Calvin and Messrs. Hoyt & Munsell, for defendant in error.
   Davis, J.

The evidence in this case is conflicting upon the point whether the car merely slowed up sufficiently to allow a man to get on, or whether it actually stopped for that purpose. There is also conflict as to whether or not the conductor had notice of the plaintiff’s intention to get off, and whether the plaintiff attempted to get off while the car was moving. If tbe car had come to a full stop for any purpose, and any passenger was in the act of alighting, it would be negligence for the conductor to start the car before such passenger had a reasonable opportunity to get off safely. If the car did not stop, but only slacked speed for the purpose of letting a man get on, the conductor was not bound to “see and ascertain” whether any person might be getting off while the car was in motion. In the absence of notice of a passenger’s desire to alight at that point, the conductor might well presume that persons on the car would not attempt to get off from a moving car, and where in such case a passenger is injured in such attempt it is for the jury to find whether the injured person exercised ordinary care and prudence in attempting to alight from a moving car without giving notice to. the conductor of a desire to get off at a given point. The plaintiff’s request to charge the jury was given without qualification. It ignores the obligation of the plaintiff to exercise ordinary care under the circumstances, and makes the case turn entirely upon the assumed negligence of the conductor in'failing to use the highest diligence “to see and ascertain” that the plaintiff was about to get off when the car had not stopped, although the plaintiff may not have signified a desire to alight. This is stating the rule of vigilance on the part of the carrier altogether too broadly. The law exacts of carriers of passengers a high degree of care for the safety of passengers, according to the circumstances, and this duty ordinarily continues until the passenger is discharged; but it is not required that the carrier shall keep a lookout to prevent passengers from jumping off from running trains, nor that it shall, at its peril, “see and ascertain” that a passenger is about to leave a moving car, without having given any notice, express or implied, of an intention to do so. For these reasons the judgments of the circuit court and the court of common pleas are

Reversed.

Btjrket, C. J., Spear, Shauck, Price and Crew, JJ., concur.