Opinion
Decided May 11, 1931.
Limitation of actions — One, two and four year statutes construed together — Sections 11224, 11224-1 and 11225, General Code — "Bodily injury" relates to negligence, not assault and battery or malpractice — One year statute applied to finger amputation necessitated by physician's malpractice.
1. One, two and four year limitation statutes must be construed together (Sections 11224, 11224-1 and 11225, General Code).
2. "Bodily injury" within two-year limitation statute includes only such bodily injury, resulting from negligence, as is not embraced within one-year limitation for assault and battery and malpractice (Sections 11224-1 and 11225, General Code).
3. Action for amputation of injured finger allegedly necessitated by physician's unauthorizedly pouring liquid thereon held to charge either assault and battery or malpractice, and therefore was within one-year limitation (Sections 11224-1 and 11225, General Code).
ERROR: Court of Appeals for Erie county.
Mr. H.L. Peeke, for plaintiff in error.
Mr. John F. McCrystal, for defendant in error.
Anna Arend commenced an action on August 18, 1928, to recover damages suffered to one of her fingers which she averred resulted in the loss of the finger by amputation. The plaintiff averred that the injury was caused by the defendant, Lester C. Mylander, committing an assault on her on January 10, 1927, causing her bodily injury. A demurrer was filed to the original petition, and thereupon, on October 8, 1928, she filed an amended petition. In the amended petition she averred that she was visiting at her sister's, and that the defendant, observing that her finger was injured, asked permission to look at it, and upon her showing it to him, without any knowledge that he was going to do anything with her finger except to examine it, he suddenly and without her consent took out a bottle and poured some liquid upon the finger, and shortly thereafter it became inflamed and caused severe pain and gangrene set in, so that it became necessary to amputate the finger. She avers that in pouring the liquid upon her finger without her consent the defendant caused her bodily injury resulting in the loss of the index finger of her left hand. The defendant filed a demurrer to the amended petition on the ground that the cause of action is barred by the statute of limitations. The court, however, overruled the demurrer, and, an answer being filed, the parties went to trial.
The court at the conclusion of the evidence offered on behalf of the plaintiff directed a verdict in favor of the defendant, and judgment was entered thereon.
It does not appear from the amended petition that the defendant was at the time a physcian, but this fact was developed on the trial of the case and a verdict was directed for the defendant, evidently on the ground that the one-year statute of limitations applied, and that the cause of action was barred thereby. Section 11225, General Code, covers assault and battery and malpractice, as well as certain other actions, limiting the time within which an action may be brought to one year after the cause of action accrued. The plaintiff claims that the case is one to recover damages for bodily injury, and that by the provisions of Section 11224-1, General Code, the action may be brought within two years after the cause of action arose. This court is of the opinion that Sections 11224, 11224-1 and 11225, General Code, must be construed together. Prior to the amendment of the former section, which became effective on August 2, 1927, that section included actions for personal injury resulting from negligence; the limitation of time within which an action could be brought being then fixed at four years. By the amendment (112 Ohio Laws, 237, 238), an action for bodily injury or injuring personal property could only be brought within two years from the time the cause thereof arose. Certainly assault and battery and malpractice result in bodily injury, but the time within which actions for that sort of bodily injury must be brought is specifically limited to one year.
The amendment known as Section 11224-1, General Code, fixing a limitation of two years in which to sue for bodily injury, can apply only to such bodily injury as is not embraced within the one-year limitation specifically fixed for assault and battery and malpractice. Clearly Section 11224-1, General Code, was intended to apply to bodily injury resulting from negligence, and not to assault and battery or malpractice. Section 11224, General Code, provided, and still provides, a limitation of four years "for an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated." Assault and battery results in injury to the rights of a plaintiff and does not arise on contract, and yet it never has been held that such injuries come within the provisions of the section last cited. It is perfectly manifest that while the conduct of the defendant is averred to have caused bodily injury to the plaintiff, the act charged was either assault and battery or malpractice, and hence within the limitation of one year, and this cause of action was therefore barred.
Judgment affirmed.
LLOYD and WILLIAMS, JJ., concur.