Vaughn v. Langmack

*572 ROSSMAN, J.,

dissenting.

I join in the dissenting opinion of Mr. Justice Sloan, and assume the privilege of amplifying the reasons set forth by him. With nothing but respect for the majority, I believe that its ruling is unjust and unfortunate.

I am convinced that the majority places an erroneous meaning upon the word “accrued” where it appears in ORS 12.010 (of our statute of limitation). That matter will receive further attention shortly.

Now that the majority opinion has become the law, the discovery rule which the courts of other states are embracing in increasing numbers is beyond judicial reach in Oregon. For this court to banish that rule, as it does today, and hold that it can be employed only in fraud cases—unless the legislature adopts special legislation such as the 1919 amendment—is a great misfortune. Henceforth, the discovery rule cannot be employed in a case such as, for example, one involving damage by seepage water unless the legislature determines whether the limitation period shall begin to run (1) when the first water enters the premises, (2) when the owner discovers the entry, (3) when the defendant commits the wrong that makes the entry possible, (4) when the plaintiff suffers damage, or (5) when some other incident occurs which the legislature accepts as crucial. Having considered all possibilities, it will be incumbent upon the legislature to do as it did in 1919—enact a measure. But, of course, by the time the measure is adopted, the limitation period has run and the plaintiff has lost his cause of action. In cases involving pollution of the air or water or the removal of lateral support from land similar problems would present themselves. Claims against *573 contractors who did their work negligently (Strandholm v. General Construction Co., 235 Or 145 , 382 P2d 843 ) or others who installed defective mechanical equipment (American Reciprocal Insurers v. Bessonette, 235 Or 507 , 385 P2d 759 ) will he denied relief under today’s ruling unless the legislature gives attention to such cases. A person may own a tract of land underlaid with coal or oil and later discover that years ago a neighbor secretly mined the coal or pumped out the oil and that the statute of limitation ran before he had any intimation whatever of what was going on under the surface. The discovery rule, which many courts employ, prevents acts of injustice of the kind just mentioned; but this court today rejects the rule. The wrongful conduct occurs when the victim, like the anesthetized patient in the surgery, has no inkling whatever of what is going on.

Long ago, without the aid of any legislation, Lewey v. Frick Coke Co., 166 Pa St 536, 31 A 261, employed the discovery rule so as to bring to account an individual who, working under the protection of the surface soil, mined his neighbor’s coal. The court held that the discovery rule prevented the beginning of the limitation period until the victim received some inkling of what his burrowing neighbor was doing. Surely, a rule of that kind is just and falls within the ambit of the meaning of the word “accrue.” And since a property owner has the protection of the discovery rule against the clandestine burrowing of his neighbor, who can explain why an individual who is anesthetized should be charged with knowledge that his surgeon failed to remove an object which he had placed in the incision. In fact, who can explain why a person should be charged with knowledge of anything that is unknown and unknowable?

*574 Possibly it will be said that a general act can be drawn applicable to all types of cases and that it will not be necessary to enact special amendments to provide for individual eases such as seduction, malpractice, alienation of affections, installation of defective equipment, and so on. Very likely, a general act can be enacted if its draftsman is willing to run the risk of doing injustice in numerous of the cases to which his act is applicable. Throughout the centuries the courts have held that the accrual of an action is a judicial and not a legislative problem. We should stay with that point of view. We should not discard the discovery rule.

Although the maxim “Expressio Unius est exclusio alterius” is not of legislative origin, and according to Sutherland Statutory Construction (3rd ed), § 4917, “requires great caution in its application, and in all cases is applicable only under certain conditions,” the majority render to it fealty that is akin to a navigator’s respect for the pole star. Every legislative enactment should be viewed as a means of accomplishing justice and, in the absence of insurmountable obstacles, should never be given a construction which will defeat justice. The majority’s interpretation of ORS 12.010 thwarts justice.

The majority employs ORS 12.010 in a manner that defeats the claim of a victim of malpractice while he remains blamelessly ignorant that (1) a surgeon left a foreign object in his abdomen and (2) he has a just claim against the suregon. It may be that in the two year period (statute of limitation) the patient continues to have full confidence in the surgeon and believes that the pains in his abdomen are natural aftereffects of the surgical operation. Vet, under the majority’s ruling, the patient’s rights end at the close of *575 the two year period. Ayers v. Morgan, 397 Pa 282, 154 A2d 788 (1959) does not subscribe to the majority’s views; it says:

* * it would be illogical and unintelligent to say that a person who does not know, and cannot know, for example, that a surgeon has negligently left a rubber tube in his body, would be denied damages because his claim for damages was filed, due to delay in learning of the presence of the tube, more than two years after the operation.”

Cicero declared, “Nothing that lacks justice can be morally right.” I am satisfied that it is not morally right to hold that this plaintiff, whose cause of action is not contested, lost it at the end of two years (period of limitation) at a time when neither he, the defendant, nor anyone else on the face of the globe knew that the defendant had left a foreign object in the incision. To hold to that effect may produce a certain symmetry in the pattern of the law similar to that of fitting together puzzle blocks, but it sacrifices justice. Our paramount duty is not to see to it that each rule of law fits in nicely with all others, but to do justice. The holding of the majority that (1) the plaintiff could have sued the defendant for malpractice the day following the closing of the incision, although no one knew at that time that the plaintiff’s abdomen held a foreign object, and (2) since the plaintiff could have sued the defendant (according to the majority) the day following the operation, therefore, the limitation period began to run on that day, requires the courts to transform the victim of malpractice from one who is blamelessly ignorant of what happened to him in the surgery into one who has full knowledge and is culpably at fault.

The erroneous reasoning in which the majority *576 engages can be justly avoided in tbe same manner that many other courts have employed by holding that the limitation period does not begin to run until the former patient discovers or should have discovered that a foreign object was left in the incision when it was closed. The very recent decision of Johnson v. Caldwell, 371 Mich 368 , 123 NW2d 785 (October 10, 1963), adopted that rule (discovery rule) in a unanimous opinion. Michigan had previously employed the rule that the limitation period begins to run when the surgeon completes his services. The Johnson opinion substituted the discovery rule for the completion of treatment rule. The Michigan court, in mentioning a case that was decided in 1949, observed, “The trend since that time has been toward what may, for identification purposes, be designated the ‘discovery rule. ’ ” As just noted, the court adopted unanimously the discovery rule.

Many other jurisdictions that employ the discovery rule have legislation similar to the Oregon statute which provides that in fraud and deceit actions the period of limitation shall begin upon discovery. For example, California, which makes frequent use of the discovery rule, has California Code of Civil Procedure, § 338.4, which reads:

“An action for relief on the ground of fraud or mistake. The cause of action in such ease not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

Colorado Revised Statutes, § 87-1-6, provides as follows :

“No person shall be permitted to maintain an action, whether such action sound in tort or implied contract, to recover damages from any per *577 son licensed to practice medicine * * * [lists all medical professions then specifies types of actions, i.e., malpractice] unless such action he instituted 'within two years after such cause of action accrued.”

Next, section 87-1-10 provides:

“Bills for relief on the ground of fraud, shall he filed within three years after the discovery by the aggrieved party, of the facts constituting such fraud, and not afterwards.”

Missouri Revised Statutes, in § 516.140, states:

“# # * All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of * # * 5?

Section 516.120 provides:

“(5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

All three states employ the discovery rule, as can be readily seen from glancing at the extensive annotation in 80 ALR2d 568. See also Thatcher v. De Tar, 351 Mo 603, 173 SW2d 760 .

In its interpretation of the word “accrued,” which is a part of ORS 12.010, the prevailing opinion paraphrases the word so as to make it read “from the day that the incision containing the foreign object was closed.” Although the majority expresses sharp disapproval of judicial legislation, yet, if a holding that *578 the limitation period does not begin to rnn until the patient discovers or has reason to suspect that a foreign object was left in the incision constitutes judicial legislation, it is impossible to understand that judicial legislation does not equally occur when the majority rules that the word “accrued” means “from the day that the incision containing the foreign object was closed.” A consultation of the numerous meanings that have been given to the word “accrued” as they appear in (1) 54 CJ'S, Limitation of Actions, § 174, (2) 1A Words and Phrases Judicially Defined, Permanent Edition 582, (3) Trial in Medical Malpractice Cases by Louisell and Williams, §§ 13.07 through 13.09, and (4) the extensive annotation in 80 ALR2d 360-415 shows that the word has no single or rigid meaning. The decisions of our own court indicate that the word has received from our pens no less than three meanings in cases of this kind. Hotelling v. Walther, 169 Or 559 , 130 P2d 944 , and Shives v. Chamberlain, 168 Or 676 , 126 P2d 28 , held that the statute of limitation does not begin to run in favor of a practitioner until he has closed his relationship with his patient. Hutchinson v. Semler, 227 Or 437 , 361 P2d 803 , which involved an alleged contraction of an industrial disease reviewed many decisions including Urie v. Thompson, 337 US 163 , 93 L Ed 1282 , 69 S Ct 1018 , which held that the statute of limitation does not begin to run until the purported victim of the wrong knows or should know that he is incurring an industrial disease. The Urie decision pointed out that if Urie were held barred from prosecuting his action because the statute of limitation had run before he discovered or had reason to suspect that he was incurring a disease, then the legislation would have “afforded Urie only a delusive remedy.” Wilder v. Haworth, 187 Or 688, 213 *579 P2d 797 , held that the statute of limitation begins to run in favor of the physician the day when he committed the act of malpractice and that the patient’s blameless ignorance of the wrong is irrelevant. Wilder v. Haworth made no mention of Urie v. Thompson, supra. Failure to mention that outstanding opinion weakens materially the authority of the Wilder decision. The TJrie decision has been cited with approval by many courts. There have been no dissents. The opinion of the majority in this case makes no mention of Urie v. Thompson.

The majority believe that because the legislature did not include in its 1919 amendment to ORS 12.110 a provision applicable to malpractice actions similar to that which it adopted concerning fraud actions that it thereby decreed that the discovery rule should not be applied in malpractice actions. Obviously, making deductions of that kind involves speculation as to the legislature’s purposes and intentions. The mere fact that the legislature in 1919 enacted a measure concerning fraud actions is no reason for inferring that it was hostile to or friendly with negligence, malpractice, trespass, or other forms of actions. The legislature, in its 1919 session, may have given no thought whatever to malpractice actions. But, if the legislature’s attitude upon a selected subject such as malpractice can be discerned from its omission to have enacted a given measure—in this case to have included in the 1919 amendment the subject of malpractice—is it not reasonable to infer that the omission to have amended the statute of limitation following the announcement of the Hotelling and Shives decisions was tantamount to legislative concurrence in the holding of those two cases? That is, if it is reasonable to infer from the omission of malpractice from the 1919 amendment that *580 the legislature did not wish to aid that type of case, is it not equally logical to say it would have repudiated the Hotelling and Shives decisions by legislation if it thought they misconstrued OES 12.110? The one conclusion seems to be as logical as the other. Clearly, the legislature did not repudiate the Hotelling and Shives decisions. And if one is tempted to read the law by drawing inferences from what the legislature did not do, can he not reason that the legislature acquiesced in the construction placed upon ORS 12.110 by Hutchinson v. Semler which cited Urie v. Thompson in support of the rule that the period of limitation does not begin to run until discovery. More than a score of years and more than ten legislative sessions have passed since the announcement of the Hotelling and Shives decisions.

Experience teaches that the legislative mind cannot be read in the manner that the majority attempts. The majority is not warranted in trying to deduce from the 1919 omission to extend the discovery rule to other types of cases that the legislature intended to confine the rule to fraud and deceit cases only. The simple explanation for the 1919 amendment is that two decisions announced by this court in fraudulent land transaction cases shortly before the 1919 session obviously attracted the legislature’s attention, and that body wished that in future cases involving fraudulent land transactions the courts should not repeat the holdings in those two eases. But no case concerning malpractice had been before the courts. Much time and intense familiarity with the law would have been required to have included in the 1919 amendment provisions detailing the commencement of the limitation period in cases such as alienation of affection, damage by seepage of water, withdrawal of latteral sup *581 port, the mining of coal under the land of the miner’s neighbor, pumping of oil from not only the driller’s land but also that of others in the area, and injury from the placing of a delayed-action bomb. Those are but a few of the cases for which provision would have had to be made by the legislature if the majority is warranted in holding that the 1919 amendment confined the discovery rule to actions of fraud and deceit only. This case, involving only an action of malpractice was presented to this court six months ago and has not yet been decided. That fact indicates the difficulty which will perplex any legislator who endeavors to introduce through legislation the discovery rule in this state. Very likely, the difficulties of drafting a comprehensive measure applicable to the full range of cases persuaded the legislature to deal only with the pressing problem of fraud, and trust the good sense of the courts to deal with the other types of cases. After all, as is held in the recent decision of Fernandi v. Strully, 35 NJ 434, 173 A2d 277 , “* * * ‘the question when a cause of action accrues is a judicial one’ * * The legislature clearly did not by any express language limit the discovery rule to fraud actions only, and no one has mentioned any reason why it would have wished to do so. The fact that in many of the other jurisdictions the discovery rule is successfully employed in the full range of all cases is persuasive evidence that no one in Oregon would have had any reason to limit the rule to fraud cases only.

When the prevailing opinion rules that the plaintiff was barred from seeking relief before he or anyone else knew that a foreign object remained in the incision, but that he. could have sued the surgeon for damr ages the day following the closing:of the incision, *582 it is impossible to understand how the plaintiff, lacking knowledge of what had occurred in the surgery and likewise lacking evidence of what had happened to him, could have instituted an action. The majority oversimplifies the problem of one who has undergone surgery which turns out to be unsuccessful. The “right” to sue upon the day following the operation— when the plaintiff did not know and could not know that a needle remained in his abdomen—obviously is delusionary. The period of limitation should not be started from such a false point.

A patient who undergoes an operation is taken into the surgery of a hospital and is given anesthesia which renders him unconscious. He knows nothing of what takes place in the surgery. All of his intimates, such as relatives, friends, and neighbors are excluded —and properly so—from the operating room. Accordingly, all knowledge of what takes place in the course of the operation, such as the placing of objects in and removing them from the incision is exclusively in the possession of the surgeon.

Mention has been made that in the period following the operation the patient may experience pain in the region of the incision but that he may infer that it is an after-effect of the operation which he must tolerate for a while. The surgeon may have warned the patient before the operation was begun that surgery possibly will not correct completely his condition of ill health; that warning may have a tendency to cause the patient to misinterpret the post-operative pains. To charge the patient with knowledge the day following the operation that an act of malpractice occurred and begin to count off against him the limitation period ignores the realities. But, let us assume that a suspicion steals into the patient’s mind that possibly some irregularity *583 occurred in the surgery or that perchance something was left in the incision. What can he do about it?

If the former patient goes to a new physician and requests him to check up on the work of the first surgeon, he is confronted with the fact that every professional man is loath to review and criticize the work of another. If a practice of that kind, were cultivated, friction in the medical profession would result. Mention is made of that fact not for the purpose of indicating that the courts should protect the medical profession from it, but because it indicates the difficulty that the former patient would encounter in endeavoring to ascertain what had happened to him in the surgery.

Although the majority indicates that the patient in whose abdomen a foreign object was left has a cause of action at once and may sue the next day, an action cannot be instituted unless the patient can establish that a foreign object is in his abdomen as a result of negligence. It is virtually a certainty that the patient has no knowledge on the day following the surgery—nor for a long time thereafter—that a foreign object was left in the incision.

It must be apparent that in many instances it is extremely difficult, in the absence of a resort to a second operation, for the former patient to establish that a foreign object remains in the incision. Many of our rules of evidence arose out of judicial ingenuity in dealing with the problems that arise when the plaintiff lacks access to the facts and the defendant has them under his control. For example, when a person enters an elevator or passenger car he has no means of knowing whether a defect exists in the mechanism. If a mishap occurs, the evidence is in the possession of the party whom he must sue. That situation and *584 others similar to it created, the rule of res ipsa loquitur. The latter enables a person who is injured by an implement in the possession of the defendant to rest his case without offering evidence upon the subject of negligence. Likewise, if a bailor places objects in a warehouse and, upon receiving their return, finds that they are in a damaged condition, he need not offer in the first place evidence of negligence. Obviously, the evidence indicating the injury to the goods is in the defendant’s not the plaintiff’s, custody.

In the present case the problem that confronts the plaintiff is not that of establishing that the defendant left a needle in the plaintiff’s abdomen. For present purposes the plaintiff’s allegations that the defendant left a needle there is not disputed. Further, for present purposes, the defendant does not deny that he left the needle in the incision the day of the operation. But the plaintiff’s problem is that of dealing with the defense based upon the statute of limitation. The defendant argues that the plaintiff should be charged as of the day of the operation with knowledge that a needle was left in the incision. The plaintiff answers that he should not be charged with knowledge of that kind until he actually was aware of it. Although the problem before us assumes a different form and employs different words from that which expresses the res ipsa loquitur rule, yet both situations are concerned with a party to litigation who has control of the facts and who proposes to use his advantage unfairly. In eases involving res ipsa loquitur blameless ignorance of the facts is excused and the party that has control over the evidence is prevented from making misuse of his advantage. He is not granted a nonsuit when the plaintiff cannot offer evidence of negligence. In cases involving the statute of limita *585 tion a party may be held to have waived tbe defense or be estopped from pressing it.

Many courts hold, as we have seen, that tbe period of limitation does not run against tbe former patient and in favor of tbe surgeon until tbe former patient knows or should reasonably know that tbe surgeon permitted a foreign substance to remain in tbe incision when be closed it. Those courts, in so bolding, do not employ the words that commonly occur in bailment cases or in others that involve tbe doctrine of res ipsa loquitur, but, based upon tbe fact that tbe surgeon has control of tbe facts do not require tbe patient to take a stand in regard to tbe statute of limitations until be knows that tbe surgeon left a foreign object in the incision or should reasonably have known of it. The rule thus employed is known as tbe discovery rule. Our court has long employed rules such as those that pertain to bailments and that constitute tbe doctrine of res ipsa loquitur.

Tbe majority do not argue that tbe discovery rule is not sound. Nor do they contend that it will not produce justice in this case. They say that its employment in Oregon would constitute judicial legislation. Tbe word “accrued,” where it appears in ORS 12.010, is tbe crucial word. Tbe legislature has not defined it. ORS 12.010 goes no further than to say that “actions at law shall only be commenced within * * * after tbe cause of action shall have accrued * * Since the legislature has not detailed the meaning of “accrued” and since tbe statute cannot operate unless a meaning is given to that word, tbe legislature obviously expected tbe courts to choose from among tbe many meanings, tbe one best suited to the purpose of ORS 12.010. Notice has been taken of the fact that *586 it is no more judicial legislation to say that “accrued” means “the day when the patient discovers or should discover the presence of the needle” than to say that it means “the day when the incision containing the needle is closed.”

The majority, however, argue that when the 1919 session of our legislature amended our two-year provision so as to make it read “in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit,” it thereby decreed that the discovery rule should be employed only in fraud cases. I have mentioned that no one suggests any reason for limiting the discovery rule to fraud cases. Other jurisdictions which employ the discovery rule make no restriction of that kind. California, one of the first states that repudiated the rule which the majority favors and which has a statute similar to the one that the prevailing opinion believes shackles this case, has employed the discovery rule freely many times and has never intimated that its statute restricts the discovery rule to fraud cases.

We have taken note of the fact that the enactment of the 1919 amendment was preceded by the announcement of two decisions by this court in land fraud cases which obviously had caught the attention of the legislature. Plainly, the legislature wished to correct the rule which this court employed in those cases without undertaking to write a sweeping statute governing the entire range of actions to which the limitation periods are applicable. Very likely, it reasoned that since the determination of the accrual of an action is a judicial function rather than a legislative one, the courts would have no difficulty with the employment of the discovery rule in other types of cases after the legisla *587 ture had enunciated it in fraud actions. If this court, rather than the legislature, had pronounced the discovery rule which was the subject of the 1919 amendment, no one would have inferred that we confined the rule exclusively to fraud cases.

But the majority lays great stress upon the maxim “Expressio unius est exclusio alterius.” Concerning that maxim Mr. Justice Kester, in Moore v. Schermerhorn, 210 Or 23 , 307 P2d 483 , 308 P2d 180 , said:

“The maxim ‘expressio unius est exclusio alterius,’ on which petitioner relies, and the somewhat related doctrine of ejusdem generis, are not rules of law, but merely guides in determining intent. They must be harmonized with other rules of construction * *

Continuing, Moore v. Schermerhorn declared:

“In State v. Standard Oil Co., 61 Or 438, 448 , 123 P 40 , in discussing the application to statutes of the maxim ‘expressio unius est exclusio alterius,’ the court said:

“ ‘* * * If there is some special reason for mentioning one, and none for mentioning a second, which is otherwise within the statute, the absence of any mention of the latter will not exclude it. 2 Lewis, Sutherland, Statutory Construction, § 495.’ ”

Using the reasoning just noted, it can readily be seen why the legislature, in enacting the 1919 amendment, mentioned fraud actions without referring to others. Fraud actions at that time commended the legislature’s attention. Malpractice and other types did not. The legislature probably thought that if it gave the courts an inkling of what it had in mind, no further difficulty would be experienced.

*588 We take the following from 82 CJS, Statutes, § 333, at page 668:

“The maxim, Expressio unius est exclusio alterius, that the mention of one thing in a statute implies the exclusion of another, is merely an arailiary rule of statutory construction, to be applied with great caution; it is not a rule of substantive law, or a constitutional command. The maxim is not of universal application, or conclusive as to the meaning of a statute; and it does not constitute a formula for construction to be arbitrarily applied. The maxim should be applied only as a means of discovering the legislative intent, which is otherwise not manifest, and should never be permitted to defeat the plainly indicated purpose of the legislature. Also, the maxim is not a means of restricting the plenary power of the legislature in enacting legislation, or of controlling express constitutional provision.

“The'maxim, Expressio unius est exclusio alteráis, is applicable only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the. statute. Accordingly, the maxim is inapplicable if there is some special reason for mentioning one thing and none for mentioning another which is otherwise within the statute, so that the absence of any mention of such other will not exclude it. * * *”

It will be observed that when the majority opinion becomes the law the discovery rule will.be beyond judicial reach until the legislature, in instance after instance, adopts amendments similar to the 1919 measure. That will be a development much to be regretted.

It- is reasonable to believe that the draftsman of the 1919 amendment, in preparing his measure concerning fraud actions, was not thinking in terms of *589 a comprehensive measure covering the full range of all kinds of actions—tort and contract. Very likely, if he had thought that the “expressio” of the rule about fraud cases would be construed by this court as the “exclusio” from the discovery rule of all other types of eases, he would have taken a very different course.

Decisions, of which Fernandi v. Strully, 35 NJ 434, 173 A2d 277 , is an excellent recent illustration, hold that the limitation period does not begin to run until the victim of the malpractice knows what has happened or has good reason to suspect it. In reaching that conclusion it overruled a previous decision which had taken the view adopted today by the majority of this court. The following reasoning taken from the New Jersey decision is perculiarly applicable to the issue now under consideration in the case at bar.

“Although New Jersey’s Legislature has provided that every action at law for injury to the person shall be brought within two years after the cause of action shall have accrued, it has, as pointed out earlier in this opinion, never sought to define or specify when a cause of action shall be deemed to have accrued within the meaning of the statute, nor has it ever expressed itself as to the effect to be given under the statute (N.J.S. 2A:14-2, N.J. S.A.) to the fact that the injury was not known to or discoverable by the injured party within the period of two years. Cf. N.J.S.A. 34:15-34. The rather obscure nature of the legislature phraseology is amply attested by the frequency of the cases in which courts have been required to pass on when the cause of action may properly be said to have accrued and the many instances in which they have reached disparate results. See Church of Holy Com’n v. Paterson, etc., R.R. Co., 66 N.J.L. 218 , 49 A 1030, 55 L.R.A. 81 (E. & A 1901); Id., 68 N.J.L. 399 , 53 A. 449, 1079 (E. & A. 1902); cf. Restatement Torts § 899, comment (e) (1939); 63 *590 Harv. L.Rev. supra, at p. 1200; 9 W.Res. L.Rev. 86, 90 (1957); 49 Mich.L.Rev. 937, 950 (1951). In reaching their results they have exercised what has long been recognized as their proper judicial function; as expressed in Mr. Wood’s well known treatise, ‘the question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which rule must be founded on reason and justice.’ 1 Wood on Limitations § 122a, 685, 686 (4th ed. 1916). See 63 Harv. L. Rev., supra, at p. 1200; cf. 9 W. Res. L. Rev., supra, at p. 97.”

We also quote the following from the New Jersey decision :

“* * * to the extent that Weinstein v. Blanchard,-supra, 109 N.J.L. 332 , 162 A. 601 , embodies a contrary view, it is hereby disapproved.”

The Weinstein decision had stood for many years. It and similar decisions are giving way to the more enlightened discovery rule.

Some courts reason that until the surgeon removes from the body of his patient the materials or implements that he placed there, such as forceps, sponges, and needles, he has not completed the undertaking to which he engaged himself when he agreed to perform the operation. They therefore hold that the period of limitations does, not begin to run until he removes from the incision the things that he placed there. If an owner employs a building contractor to do some construction work, he expects the contractor to remove from the premises all of his tools, equipment and the building debris. Hntil all has been removed, the work is not completed. Many courts employ that point of view when the facts disclose that the surgeon left a sponge, rubber hose or surgical needle in the incision. *591 Ayers v. Morgan, 397 Pa 282, 154 A2d 788 , is a good recent decision of that Mnd. Although it is very recent, it has been many times cited with approval. In that case the surgeon left in the patient a metallic sponge. The Pennsylvania statute of limitation reads:

“Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards Íí JJ

United States v. Reid, 251 F2d 691, was a suit under the federal tort claims act for the negligence of a physician in failing to advise a civilian army employee, who was entitled to treatment, that he had incipient tuberculosis. A radiologist discovered the incipient tuberculosis March 10, 1949, but the defendant failed to disclose it to the patient. The period of limitation had expired unless it began when the plaintiff became aware of the facts. The United States Court of Appeals, in affirming the District Court judgment, held that the claim did not accrue until advanced tubercular conditions became manifest.

Quinton v. United States, 304 F2d 234, adopted the reasoning of Urie v. Thompson, supra, and held that the action was not barred.

Spath v. Morrow, 174 Neb 38, 115 NW2d 581 , ruled a suregon liable who had left in plaintiff’s abdomen a suture needle and that the bar period did not begin to run until after the plaintiff had discovered the needle. The Nebraska decision cited approvingly the above mentioned Pennsylvania and New Jersey decisions. The Nebraska decision concluded with the following observations:

“In Williams v. Elias, supra, this court took *592 note ■ of the mutual confidence which is essential in the relation between physician and patient; that the physician should have a reasonable opportunity to correct the mistakes incident to even skilled surgery; and that the physician should not be harrassed by premature litigation instituted in order to save the rights of the patient. Patients should not be encouraged to go from physician to physician in an effort to ascertain whether the diagnosis made and the treatment received are proper. Silence on the part of the physician for the statutory period should not destroy the rights of the patient.

“We conclude that the cause of action in this case did not accrue until the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, that a foreign object had been left in her body. The demurrers of the defendants should have been overruled. The judgment of the district court is reversed and the cause remanded for further proceedings.”

It is unnecessary to give further attention to the precedents. Many others that reached the same result are reviewed in 80 ALR2d 820. However, the majority appears to be much impressed with the Ohio decisions. If one will study the treatise, “Cause of Action and the Statutes of Limitation—‘The Chains that Bind,’” 9 Western Reserve Law Review 86, he will observe that the Ohio experience should be avoided in this state. The article just cited shows the many Ohio decisions that have been overruled and the legislation that has been nullified by strict construction. The article states:

“Thus the rule that the cause of action accrues upon discovery of the injury was given a strict construction by courts seeking to minimize the change in the common law. The succeeding generation of judges inherited the anti-legislation precedent of its forebearers. Faced with the choice of *593 breaking with precedent and giving the statutes a liberal construction, or following precedent, the courts chose the latter. The severe result of this choice frustrated both the unsuccessful litigant barred on a procedural technicality and the judge. The useful rule of discovery lies dormant, and the courts remain linked to harsh precedent by chains forged by their predecessors.” .

The unjust results which emanate from the rule which the majority employs is illustrated in the following paragraph quoted from 12 Wyoming Law Journal 30:

“This unrealistic approach of the majority rule has resulted in ‘shocking’ consequences in many decisions. The Kansas court held a two year statute had run in an action where radium beads were negligently permitted to remain- in the body of a patient, despite assurances to the contrary, ultimately resulting in her death six years later, at which time the beads were discovered. The dissenting judge disapproved of a rule permitting a doctor to set an agency such as radium in operation and escape liability because it takes more than two years for the radium to accomplish the inevitable end—the death of the patient. Another case involved a pair of forceps which were left in a patient and not discovered until thirty months later when one-half of the forceps was discharged from the plaintiff’s bowels. The court, held this action was barred under a one year , statute since the cause accrues ‘. . . when a party-has the right and capacity to sue, and his right of action is not suspended until he ascertains that he has a cause of action.’ Impractical results such as these have occurred in many other cases and demonstrate only too well the unreasonable character of the majority rule.”

We take the following from the same treatise:

“While some courts have, stated that they, have *594 no alternative other than to follow the legislative dictates in holding that the words ‘after the cause of action accrues’ refers specifically to the date of the wrongful act, other courts have construed the very same words to reach a more practical and reasonable result. It has been pointed out that the courts have both a duty and a right to make a judicial determination of the date of accrual where the legislature fails to state when it shall accrue. The necessity for a reasonable construction can probably be illustrated most clearly by using the words of the Colorado court in Rosane v. Senger, when it was stated: ‘It is ... an ancient maxim of the common law that “Where there is a right there is a remedy.” What a mockery to say to one, grievously wronged, “Certainly you had a remedy, but while your debtor concealed from you the fact that you had a right, the law stripped you of your remedy.’””

We should not sustain the demurrer to the complaint. It is inevitable that the point of view which sustains the demurrer will be swept aside by enlightened judicial determination or by legislative action. The following is also taken from 12 Wyoming Law Journal, page 37:

“It would appear from the modern trend, both through a judicial and a legislative viewpoint, that courts are beginning to realize that only the negligent physician is protected by the majority rule— at the expense of the public and of competent practitioners. In cases decided since 1940, only nine jurisdictions have consistently refused to toll the statutes or to permit a portion of the action and two of these decisions were with strong dissents. On the other hand, eighteen jurisdictions have either held that the statute was tolled, or have permitted a portion to remain on a contract theory. In addition, several statutory reforms have been instigated. The Missouri statute reads, in effect, that *595 the cause of action will not accrue at the date of the technical breach, but only when the resulting damage is ascertainble and sustained. A statutory amendment has been proposed in New York which would provide that the statute commences to run at the date of the discovery, if within six years.

The majority’s rule has its roots in the past, and those roots are in a state of decay. "When the demurrer is sustained the plaintiff is denied recovery, but before long the decay will have been completed and a future litigant will succeed where this one was turned away empty handed but subjected to costs.

I dissent.

O’Conneijj, J., joins in this dissent.