Petition — Housen v. Duke
Supreme Court brief1979
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JUL 2 1979
IN THE | Micie EL RODAK, JR., C
Supreme Court of the United States
OCTOBER TERM, 1978
a 79-3 bed
No.
MARGARET HOUSEN,
Petitioner,
Vv.
“PONY” DUKE,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF WYOMING
ROBERT J. STANFORD
1825 K Street, N.W.
Washington, D.C.
20006
Attorney for
Petitioner
PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.
Ok a RBCO sions
ae
Page
I ee i 2
rate eg. eS eek le 2
SURGTIONG PRESENTED .... 0.50... oc eo cca e ee 3
CONSTITUTIONAL PROVISIONS AND STATUTES
RE SeeS Sa ah a ta ae 3
STATEMENT OF THECASE .................... tite)
REASONS FOR GRANTING WRIT.................. 15
I. The State Supreme Court has an Obligation
to Protect Rights Granted by the United
States Constitution..................... 16
II. The Determination of Facts by the
Wyoming Supreme Court Without Basis in
the Trial Record and Even Directly
Contradictory to the Evidence is Contrary to
the Established Procedures of the Wyoming
Supreme Court and Fundamental Principles
Ny kc ook e's oooh ec 19
III. The Appellate Court Contrary to Its Own
Rules of Procedure, Applied to Other
Litigants, Relieved the Respondent of the
Burden of Showing the Applicability of the
Borrowing Statute and of Proving the
Affirmative Defense of the Statute of
ee ok aw o's ox oe 22
IV. The Appellate Presumption That Evidence
Must Be Viewed in a Light Most Favorable
to the Prevailing Party Was Violated in the
CS ee 26
I ee 28
i}
CITATIONS
CASES: Page
Baltimore and Carolina Line v. Redman, 295 U.S. 654,
79 L.Ed. 1636, 1638 (1935). ......... eee eeeeees 20
Buckman v. United Mine Workers of America, 339
P.2d 398, 402 (Wyo. 1959)... 0... cc eee eee ees 20
Daniels v. Hadley, 566 F.2d 749 (D.C. Cir. 1977)..... 24
Duke v. Housen, 589 P.2d 334 (Wyo. 1979) ... 2,9, 24, 25,
26, 27
Duke v. Housen, reh.den., 590 P.2d 1340 (Wyo.
Rea BR ABE A een ay ee 2, 13, 24, 25
Garland v. True Temper Corporation, 354 F.Supp.
BSS, SEB TW VG. BOTAN. as ccc cs cweowies 23
Graham v. Roberts, 441 F.2d 995 (D.C. Cir. 1970)'.... 24
Hardware Dealers Mutual Fire Insurance Company
of Wisconsin v. Glidden Company, 284 U.S. 151,
716 L.Ed 214, 219, 52 S.Ct. 69(1931) ............ 16
Hicks v. U.S., 368 F.2d 626, (4th Cir. 1966).......... 24
International Terminal Operating Co. v. N.V. Neder.
Amerik Stoomv. Maats, 393 U.S. 74, 21 L.Ed.2d
58, 60, 89 S.Ct. 53, amend.dec. 393 U.S. 995, 21
L.Ed. 2d 461, 89 S.Ct. 482 (1968) .............. 20
Irvin v. Dowd, 359 U.S. 394, 3 L.Ed.2d 900, 79 S.Ct.
PUNE 2 Ue ks + aa wd sa eS RA ROR ee Pa aw Ns 16
Overcase v. Baldwin, 544 P.2d 464, 465 (Wyo.
SO Soo hbase a ae OURO os Ce 26
Ray v. Oklahoma Furniture Mfg. Co., 40 P.2d 663
I BON 3 icc lis Cann eie ha eX ce rs oh ee 23
Riley v. Union Pacific Railroad Co., 88 F.Supp. 391
(D.C. Wyo. 1950), aff'd. 182 F.2d 765 (10th Cir.
sas Se Abe RET e VEDA» Cea EAE ae ess 22
Rinaldi v. Yeager, 384 U.S. 305, 16 L.Ed.2d 577, 581
OB BCe. RAPT GE ob 5 be 8 hee eRe al 17
iii
Page
Robb v. Connolly, 111 U.S. 624, 28 L.Ed. 542 , 546, 4
eh DOG TENN) Vika chorea a 16
Roberts v. New York, 295 U.S. 264, 79 L.Ed. 1429,
AGH OO Ae CORO a bike othe dha bake cinco 17
Rochin v. California, 342 U.S. 165, 96 L.Ed. 183, 188,
78 Dae OPA OUE iis Nc Adar ee eerie eee 18
Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert.
den. 352 U.S. 870, 1 L.Ed.2d 76, 77 S.Ct. 94...... 17
Swearingin v. Rendigs, 4 N.E.2d 695 (Ohio 1935)..... 23
Union Stockyards Nat. Bank of South Omaha v.
Maika, 16 Wyo. 141, 92 P.619 (Wyo. 1907) ...... 22
Wahl v. Cunningham, et al, 6 S.W.2d 576 (Mo.
SNe xin as DANE Rw hh ben We ea 23
Zitterkop v. Roussalis, 546 P.2d 436, 437 (Wyo.
POGUE tad Sho nNOS aba beorra cok Cease oe 26
STATUTES:
SORE SONNE oe re ee 2
0k Tee BAAD ioe 11
Sie I og ay Be re weg 11
Montana Rev. Code §92-2613..................... 12
Pees TH MU) UIE te ioc ek ko bw cece eee 4,9, 25
Ohio Rev. Code Ann. §2305.09.................00. 11
Wyo. Stat. §1-18 (1957) (now Wyo. Stat. §1-3-
REET se OER Cae ee eee 4,9, 11,13
Wyo. Stat. §1-25 (1957) (now Wyo. Stat. §1-3-
BOEING eid okie NERS RETO ee 5, 9, 23
RULES:
Wyoming Rules of Civil Procedure, Rule 8(c) ........ 23
iv
CONSTITUTIONAL PROVISIONS:
U.S. Const... amntenll. Vi. oc 5s de dee eer aveewea ener.
U.S. Conet., quem. Vi ..c..s cic ewer veeweeeeke
U.S. Comat., amend. ZIV vo. cecvcuseves
Wyoming Const., Art. 1,98 o1.6 cs ivccdasaetoctens'
Wyoming Const., Art. 1, 06 0663. bs icxawessedar eens
Wyoming Conet., Art. 1,98 05:5 desk veabeameerene.
Wyoming Const., Ast. 1,8 iis: nea sitetaeas eeemnes
Wyoming Const., Art. 1, 96.5 0 s.ccveunsae ess acens
MISCELLANEOUS:
5 Am Jur Trials 441, $43 at 582
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No.
MARGARET HOUSEN,
Petitioner,
Vv.
“PONY” DUKE,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF WYOMING
Petitioner Margaret Housen respectfully prays
that a writ of certiorari issue to review the judgment
of the Supreme Court of the State of Wyoming. By
that judgment the Wyoming Supreme Court reversed
a verdict that had been entered in favor of Petitioner
in the amount of $1,300,000 on the grounds that the
statute of limitations barred the action. This case was
a tort action in which it was determined by a jury
that the respondent, with gross negligence, had
caused infection to the petitioner, which resulted in
lifetime pain and high probability of sterility.
The decision of the Supreme Court of Wyoming
arbitrarily and capriciously vacated the judgment
that had been entered in favor of Petitioner by engag-
2
ing in appellate fact finding that was not only unsup-
ported by evidence introduced at the trial, but was in
some instances directly contradicted by the evidence.
Additionally, the decision unconstitutionally applied
the Wyoming borrowing statute by arbitrarily choos-
ing one of a number of jurisdictions, which was det-
rimental to the petitioner rather than the respondent
who had caused uncertainty to exist as to which of
the jurisdictions was appropriate.
OPINIONS BELOW
The decision of the Supreme Court of the State of
Wyoming is reported as Duke v. Housen, 589 P. 2d
334 (Wyo. 1979), and the order denying rehearing is
reported as Duke v. Housen, 590 P.2d 1340 (Wyo.
1979). The original opinion is appended to this Peti-
tion at Page la; the order denying rehearing is ap-
pended to this Petition at page 49a. Neither decision
was agreed upon by a unanimous court.
JURISDICTION
The judgment of the Wyoming Supreme Court was
entered on January 12, 1979. A timely petition for
rehearing was denied by an order entered March 2,
1979. An Order Extending Time to File Petition for
Writ of Certiorari was entered June 4, 1979, wherein
the Honorable Byron R. White, Associate Justice of
the Supreme Court of the United States, granted Pe-
titioner a continuance of time within which to file her
petition fer writ of certiorari to and including July 2,
1979. The jurisdiction of this Court is invoked under
28 U.S.C. Section 1257(3).
3
QUESTIONS PRESENTED
1. May the Supreme Court of the State of Wyo-
ming constitutionally vacate a judgment entered on
behalf of Petitioner when that decision was reached
under the following circumstances:
a. The Wyoming Supreme Court arbitrarily en-
gaged in fact finding at the appellate levei
and did so by making factual determinations
that were without support and in some in-
stances flatly contradicted by the record;
b. The Wyoming Supreme Court arbitrarily re-
lieved Respondent Duke’s burden of proving
his affirmative defenses, most particularly his
defense of the statute of limitations.
c. The Wyoming Supreme Court arbitrarily den-
ied Petitioner the benefit of the standing prin-
ciple of appellate procedure which grants to
the prevailing party at trial every favorable
inference to be drawn from the evidence.
2. In arbitrarily denying Margaret Housen the ap-
pellate safeguards applied to every other litigant by
the Wyoming Supreme Court, and by vacating a judg-
ment that had been properly returned by a jury in
Park County, Wyoming, did the Supreme Court of
Wyoming violate Petitioner’s rights to due process
and equal protection of the laws as guaranteed by the
Fourteenth Amendment to the United States Consti-
tution?
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The applicable constitutional provision is the Four-
teenth Amendment to the United States Constitu-
4
tion.! The Wyoming statute of limitations was Section
1-18, W.S. 1957, presently cited as Section 1-3-1065,
W.S., 1977.2 The Nebraska statute of limitations was
Section 25-207, N.R.S. The Wyoming “borrowing
' Amendment 14, United States Constitution
AMENDMENT XIV
Section 1.
(Citizenship Rights Not To Be Abridged By States)
All persons born or naturalized in the United States and sub-
ject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protec-
tion of the laws.
* Section 1-18, W.S. 1957, presently cited as Section 1-3-105,
W.S. 1977:
Within four years, an action for trespass upon real property; an
action for the recovery of personal property, or for taking, de-
taining or injuring the same; but in an action for the wrongful
taking of personal property the cause of action shall not be
deemed to have accrued until the wrong-doer is discovered; an
action for an injury to the rights of the plaintiff, not arising on
contract, and not hereinafter enumerated; and action for relief on
the ground of fraud; but the case of action in such case shall not
be deemed to have accrued until the discovery of the fraud.
* Section 25-207, NRS
Actions for trespass, conversion, other torts; frauds; exceptions.
The following actions can only be brought within four years:
(1) An action for trespass upon real property;
(2) An action for taking, detaining, or injuring personal
property, including actions for the specific recovery of
personal property;
(3) An action for an injury to the rights of the plaintiff, not
arising on contract, and not hereinafter enumerated; and
5
statute’ was Section 1-25, W.S., 1957, presently cited
as Section 1-3-117, W.S. 1977.‘
STATEMENT OF THE CASE
On April 19, 1974, Margaret W. Housen filed a tort
action against Angier St. George Biddle ‘‘Pony”’
Duke, in the Fifth Judicial District Court in and for
Park County, Wyoming. The case concerned the fact
that Mr. Duke had negligently, willfully, and wanton-
ly infected Miss Housen with an infectious venereal
disease, namely gonorrhea; and, as a consequence
caused to her person irreparable damage to internal
-organs. Adhesions were formed in the lower abdomen
which, despite surgery performed in July, 1973, would
cause pain which would continue for the remainder of
Miss Housen’s life and may cause her to become a
“pelvic cripple’. In addition to the adhesions which
formed in the lower abdomen, a faliopian tube was
completely blocked thus impairing, and most proba-
bly inhibiting permanently, her ability to bear chil-
dren. ‘
Miss Housen lived in a northern Virginia suburb of
Washington, D.C. Mr. Duke had himself introduced
to her on Saturday, April 4, 1970, through Miss Hou-
sen’s brother. He met her in her family home and later
entertained her family at a restaurant.
(4) An action for relief on the ground of fraud, but the cause
of action in such case shall not be deemed to have ac-
crued until the discovery of the fraud, except as provided
in Sections 30-2206 and 76-288 to 76-298.
* Section 1-25, W.S. 1957, presently cited as Section 1-3-117,
W.S. 1977:
If, by the laws of the state or county where the cause of action
arose the action is barred, it is also barred in this state.
6
What followed after that was a touching, and ulti-
mately, tragic relationship that crisscrossed the
breadth of the nation. Mr. Duke called Miss Housen
at least ten times on Sunday, saying that he had fallen
in love, and wanted her to marry him and travel to
Wyoming to one of his family’s residences. For three
days he insisted and finally she agreed to travel with
him to Wyoming. On April 8, 1970, she flew to meet
him at LaGuardia Airport; he wanted to visit his
grandmother, so the trip was postponed for a day.
They had intercourse in New York. They spent the
nights along the way in several states and they were,
of course, intimate.’ When she noticed that he took
some pills one morning, he said it was for a sore
throat, and never during the entire experience did Mr.
Duke, directly or indirectly, advise her or intimate to
her that he had a venereal disease.
On Sunday, April 12, 1970, they arrived in Denver,
Colorado. He drove to the Brown Palace Hotel, told
her to be sure to stay in the old part, gave her fifty
dollars. and he left her in Denver, stranded. Utterly
alone, she called her brother. He flew out West, and
the two of them met with Mr. Duke at his family’s
ranch at Meeteetsee, Wyoming. He apologized, they
reconciled, and he agreed to travel back to Washing-
ton, D.C. to apologize to her family. The marriage
* As the Opinion set forth, Appendix 16a, ‘sexual intercourse
between the plaintiff and defendant took place on the dates and
in other state jurisdictions in accordance with an itinerary as
follows: April 4-5, 1970—State of Virginia; April 7-8, 1970—Tux-
edo, New York; April 8-9, 1970—Erie, Pennsylvania; April 9-10,
1970—State of Iowa; April 10-11, 1970—Ogallala, Nebraska;
April 20-21, 1970, New York City, New York.”’
7
plans were reaffirmed. On Monday, April 20, 1970,
they arrived in Washington D.C. To this time, she
experienced no visible signs of the disease, and was
unaware that she had contracted it.
After meeting with Margaret Housen’s family,
Pony Duke asked Margaret to return with him to New
York City and she was reaffirmed in her belief that
they would be married. They arrived in New York on
the evening of April 20, 1970, checked into a hotel,
and spent the night. On the morning of April 21, 1970
the following happened:
He got up and said he had some business to take
care of ... I said, where are you going? He said
I am going to the doctor. I said why? He said, I
have gonorrhea and you have it too, and you
better go to the doctor as well. He picked up the
— to his suit and laughed and walked out the
oor.
—Testimony of Margaret Ho i
trial, R.716. % cet
The evidence developed at the trial was that Mr. Duke
8 known prior to April 1, 1970, that he had gonor-
rhea.
In disbelief and shock, she gathered herself togeth-
er, flew to Washington, and was examined by a doctor
on April 22, 1970. The medical tests were positive and
she underwent treatment and on May 14, 1970, an-
other examination produced a negative result and she
believed she had no further consequences of the gon-
orrhea infection.
In January, 1973, Miss Housen became aware of a
persistent pain in the abdominal lower right quadrant.
The increase in pain caused her to seek medical atten-
8
ion i arch, 1973. An exploratory laparotomy was
nee on July 9, 1973, and revealed that the right
fallopian tube was bound to the cecum and the colon
by adhesions which were caused by the previous in-
fection of gonorrhea.
In January, 1974, the pain had returned and Miss
Housen spoke with her physician who informed her
that there was nothing more that could be done as
another operation would most probably be iatrogenic.
An operation to lyse the adhesions and relieve the
pain would only result in more adhesions forming and
subsequently more and more pain.
On April 19, 1974, suit was filed against Pony Duke
in the State of Wyoming, his residence at that time.
Exhaustive medical testimony was presented at the
trial. Mr. Duke, however, failed to produce his com-
plete medical records despite a court order demanding
such records. At the end of a two-week trial the case
was given to a jury which responded in less than six
hours with a verdict of $300,000 in exemplary dam-
ages and $1,000,000 in punitive damages.
The jury, prior to awarding damages had responded
to two special interrogatories submitted to it by the
Court. The answers were as follows:
. 1: Do you find that the De-
mi aoe a fendant was infected with
gonorrhea during the pe-
riod of April 4, 1970
through April 21, 1970?
/s/ Yes
t No. 2: Do you find that the Plain-
sia by taille tiff’ was advised on April
18, 1970, that the Defend-
EN aiid 2s token te Age
9
ant had or had had gonor-
rhea?
/s/ No
—See footnote 1, Duke v. Housen, 589 P.2d
334, 339 (Wyo. 1979).
The significance of the two interrogatories is two-
fold:
1. The jury was unable to determine the date of
infection with precision other than the period
of time of April 4, 1970 through April 21,
1970;
2. The jury determined that Miss Housen had
no knowledge of the condition of Mr. Duke’s
state of health as of April 18, 1970.
}
Mr. Duke’s defense during the trial had been that
he had been cured by the time he met Miss Housen.
Further, he argued that the action was barred by the
Wyoming four-year statute of limitations, since he
claimed to have informed her on April 18, 1970 that
he had an infectious venereal disease. The jury in its
answers to the two interrogatories explicitly contra-
dicted and rejected Mr. Duke’s claim.
On appeal to the Wyomingg Supreme Court, Mr.
Duke raised the issue of the statute of limitations,
together with other issues that were not discussed or
determined by the Supreme Court. The. defense had
been raised at the trial level, and District Court J udge
Dixon had rejected the argument. On the appellate
level, Mr. Duke shifted his argument from the Wyo-
ming statute, and claimed that the three-year statute
of limitations in New York was applicable. He cited
the Wyoming borrowing statute, and argued that it
made the New York statute applicable.
10
In reply, Miss Housen’s brief discussed the follow-
ing principles:
1. The law of the forum is the applicable law for
purposes of applying the statute of limita-
tions. This well-recognized rule of law has
been established in Wyoming for more than
seven decades.
2. The borrowing statute, because it is in dero-
gation of the common law, must be strictly
construed.
3. The borrowing statute places a burden on the
person asserting it to prove that the cause of
action arose in a particular jurisdiction other
than Wyoming.
4. Mr. Duke did absolutely nothing during the
litigation to prove that the cause of action
arose in another state. Thus, he failed in his
burden to prove the application of the Wyo-
ming borrowing statute.
5. Mr. Duke’s selection of the New York statute,
in face of the multi-state nature of the rela-
tionship, was completely arbitrary, self-serv-
ing, and unproved.
The principles raised by Miss Housen were of par-
ticular importance due to the unique circumstances of
this tort. The issues of where the cause of action
occurred, and when the cause of action arose were
considerably different than in a normal tort action. In
what states did intercourse take place? Of those
states, in which ones was the germ implanted in her
body that led to the infection? Of the states that they
traveled through, where did the infection begin? And
when did the cause of action really arise? Did it arise
first when scars commenced to form and the keloid
tissue first begar to develop, or did the cause of action
Binesee
11
not arise until the condition developed to the point
that she experienced pain in 1973 and learned that
the asymptomatic infection of April 1970 had not in
fact been arrested? Did the petitioner’s cause arise
when she was informed that she was permanently and
irrevocably damaged as a consequence of Mr. Duke’s
blatant disregard for her health and safety?
Respondent Duke offered no factual proof on any
of these issues. He chose an alternate tactic at the
trial, attempting to prove that he had been cured of
gonorrhea. Once having embarked on a trial tactic, it
is both improper and disingenuous for him now to try
a new and different tactic on appeal. The suit was
brought for injuries arising out of the scar formation,
which included surgery, infertility, and pain and suf-
fering emanating from the scar tissue injury. It is an
ongoing process of such a kind that one could not,
from the record, tell when exactly, the infection took
hold, when the scars actually commenced to form, and
when and where the metamorphosis had ultimately
advanced to the point where an operat’.n was neces-
sary, but the diagnosis was made that is: further-
treatment would reverse the permanent damage.
With this background and without adducing any
evidence to support his assertion, Duke argued to the
Wyoming Supreme Court that the New York statute
was made applicable through the Wyoming borrowing
statute. But what of the other states that they trav-
eled through? Why didn’t Mr. Duke select the Wyo-
ming four-year statute (§1-18, W.S. 1957), or the Col-
orado six-year statute (§13-80-119,CRS), or the Ne-
braska four-year statute (§25-207, NRS), or the Ohio
four-year statute (§2305.09, ORCA), or the Illinois
five-year statute (§83-16, IRS), or the a four-
12
year statute (§93-2613, MRC)?
It is clear that even under the most conservative
reading of any statute of limitations, that the action
was properly filed in Wyoming within the Wyoming
four-year statute of limitations. Her first knowledge
that she might have gonorrhea was on April 21 1970;
her first knowledge that she had gonorrhea was on
April 22, 1970; her first knowledge that she was per-
manently damaged by gonorrhea was in July of 1973.
Duke sought application of a four-year or less statute
of limitations, however, even though he introduced no
proof at trial to demonstrate that any state other
than Wyoming was the state in which the cause of
action arose. That burden was imperative because the
cause of action was not based on the act of inter-
course; it was instead based on the negligent infection,
the creation of a disease, and to prove the applicability
of a statute other than Wyoming’s, he had to prove
that the negligent infection arose in a state other than
Wyoming. Mr. Duke totally and completely failed to
elicit any proof that the infection arose in a state
other than Wyoming.
The Supreme Court of Wyoming assumed Mr.
Duke’s burden, and arbitrarily held that the cause of
action: arose in New York, that the New York three-
year statute of limitations was borrowed, and that
Miss Housen’s action was time barred. The arhitrar-
iness of that decision is patent, explicit, and so ex-
treme that it denied Miss Housen her fundamental
rights to due process and equal protection. While the
arbitrary character of that decision will be discussed
at length hereafter, instances of that arbitrariness can
be detailed now.
eS
13
The Wyoming Supreme Court stated that it cannot
and will not decide any question or fact. Id at 340
(7a). It acknowledged that there was “‘no testimony
or evidence in this case as to the exact time the plain-
tiff was infected by exposure to the defendant’s dis-
ease.” Id at 349 (28a). The Court followed with ‘“‘the
gonococci may have taken hold at once following the
first exposure or the results delayed until some later
time. We cannot guess and will not try to.” (Id at
351.) (32a)
Despite these declarations, the Wyoming Supreme
Court held that the cause of action arose in New York
State requiring the Wyoming Court to borrow the
statute of limitations of New York, which is three
years. By so doing, the Court foreclosed the Petition-
er’s action which was brought in Wyoming under its
four-year statute of limitations.
The opinion by the Wyoming Supreme Court in its
arbitrariness denies Miss Housen the fundamental
rights of due Process and equal protection under the
law that is guaranteed to litigants within our judicial
system. As noted in his dissent to the Court’s order
denying Miss Housen’s Petition for Rehearing, Jus-
tice McClintock noted the fact that the Court had,
inter alia, made fact findings that were “‘not support-
ed by and in some cases in conflict with the uncon-
tradicted evidence.” This observation appeared in the
dissent in the following context:
The majority opinion has been a confusing and
difficult one for me to read because of contradic-
tory statements, leaving me without a clear un-
derstanding as to just what is the holding of the
court. I share the concern expressed in the peti-
tion for rehearing that the majority ignore two
well-established rules of this court: that it will
14
ant all favorable inferences to the appellee, and
Ehat it is not the trier of the facts. I agree with
counsel that not only has the majority made such
findings but that they are not supported by and
in pm cases in conflict with the uncontradicted
evidence.
—590 P.2d 1340, 1341 (49a-50a)
The first instance at which the denial of the federal
rights could be raised was after the original appellate
decision was rendered because the denial arises from
that decision itself. Therefore, Miss Housen timely
filed a petition for rehearing and asserted a denial of
the due process and equal protection rights as guar-
anteed by the Fourteenth Amendment to the United
States Constitution. After a lengthy discussion con-
cerning the arbitrary nature of the court’s decision,
Miss Housen detailed the constitutional violations
specifically. The ruling by the court on her petition
: Miss Housen’s petition for rehearing provided as follows:
The result reached by this court violates fundamental consti-
tutional protections guaranteed to Miss Housen by the United
States and the Wyoming constitutions. The discarding of a cause
of action under the circumstances discussed in this petition as
well as under the circumstances discussed in Appellee’s brief
violate the following specific provisions:
a. Article 1, Section 3 of the Wyoming Constitution deal-
ing with equality of rights.
b. Article 1, Section 6 of the Wyoming Constitution deal-
ing with due process of law.
c. Article 1, Section 7 of the Wyoming constitution deal-
ing with the arbitrary exercise of power.
d. Article 1, Section 8 of the Wyoming constitution deal-
ing with the availability of courts for redress.
e. Article 1, Section 9 of the Wyoming constitution deal-
ing with trial by jury.
15
evidenced that the court had considered her argu-
ments; the order denying rehearing held that the pe-
tition was denied ‘‘after full consideration.” Id at 1340
(49a)
REASONS FOR GRANTING WRIT
The action by the Wyoming Supreme Court consti-
tutes arbitrary, capricious, and unreasonable action
that denied Petitioner, Margaret Housen, her funda-
mental rights to due process of law and equal protec-
tion guaranteed by the Fourteenth Amendment to the
United States Constitution. As recognized by Justice
McClintock in his dissent, the Wyoming Supreme
Court deviated from established appellate procedure,
shifted burdens of proof that were properly upon the
defendant to Margaret Housen, made factual deter-
minations that were in conflict with the evidence, and
explicitly engaged in conduct that it had within the
majority opinion explicitly disavowed. This deviation
f. Amendment 5 to the United States constitution dealing
with due process of law.
g. Amendment 7 to the United States constitution dealing
with trial by jury.
h. Amendment 14 to the United States constitution deal-
ing with due process of law and the equal protection of
the laws.
An individual's cause of action is a property right that must
be treated fairly and decently. It must not be made the subject
of ‘‘special”’ appellate rules that are not reserved for other causes
of action. If this court is not going to make factual determina-
tions for other causes of action, then it must not do so for Miss
Housen. If this court is not going to grant the appellant the
evidentiary presumption for other causes of action, then it must
not grant that presumption to Mr. Duke. If this court is going
to require defendants in other cases to prove their affirmative
defenses, then it must do so in this case.
16
from established procedure, and Margaret Housen’s
unique treatment by the Wyoming Supreme Court,
was not founded on any rational basis. She was, quite
simply, not treated properly by that Court, and the
treatment was of such a gross nature that it violated
her fundamental rights. Because the petition for re-
hearing was denied (over the strong dissent of J ustice
McClintock), Margaret Housen’s only recourse is with
this Court.
I. The State Supreme Court has an Obliga-
tion to Protect Rights Granted by the
United States Constitution.
It is incumbent upon the supreme courts of the
several states ‘‘to guard, enforce, and protect every
right granted or secured by the Constitution of the
United States.”’ This principle has been firmly estab-
lished by this Court for almost a century. Robb v.
Connolly, 111 U.S. 624, 28 L.ed 542, 546, 4 S.Ct. 544
(1884). It has been given emphasis in current times in
the case of Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825
(1959) 3L.Ed. 2nd. 900.
The due process and equal protection obligations
imposed on state courts protect against unreasonable
or arbitrary action. For instance, this court has held
that a state judicial procedure can be neither unrea-
sonable nor arbitrary. Hardware Dealers Mutual Fire
Insurance Company of Wisconsin v. Glidden Com-
pany, 284 U.S. 151, 76 L.Ed 214, 219, 52 S.Ct. 69
(1931). Justice Cardozo commented on the protection
afforded to state court litigants by the Fourteenth
Amendment:
In condemnation proceedings as in lawsuits gen-
erally the Fourteenth Amendment is not a guar-
17
anty that a trial shall be devoid of error. ... To
bring about a taking without due process of law
by force of such a judgment, the error must be
gross and obvious, coming close to the boundary
of arbitrary action.
—Roberts v. New York, 295 U.S. 264, 79
L.Ed 1429, 1435
In the case of Sexton v. Barry, 233 F.2d 220 (6th Cir.
1956), Cert. den. 352 U.S. 870, 1 L.Ed. 2d 76, 77 S.
Ct. 94, a plaintiff appeared pro se in an action against
certain Ohio judges that he claimed had violated his
rights. Although the Court found that no discrimi-
nation occurred, the Sixth Circuit Court of Appeals
emphasized the following precept of the equal protec-
tion clause,
The equal protection of law implies that all liti-
ag similarly situated may appeal to courts for
oth relief and defense under like conditions,
with like protection, and without discrimination.
—Id at 224
More recently, this Court has determined these rights
to be ‘‘fundamental”’ protection:
This Court has never held that the States are
required to establish avenues of appellate review,
but it is now fundamental that, once established,
those avenues must be kept free of unreasoned
distinctions that can only impede open and equal
access to the courts.
—Rinaldi v. Yeager, 384 U.S. 305, 16 L.Ed
2d 577, 581, 86 S.Ct. 1497 (1966)
Thus, the state courts have a clear duty to admin-
ister justice in a manner that offends neither the due
process nor the equal protection clauses of the United
»
18
States Constitution. Equally important, however, is
the responsibility of the United States Supreme Court
to exercise its judgment in respect to state court pro-
ceedings to determine if such constitutional protec-
tions have been abridged. Accordingly, this Court re-
versed a state criminal conviction, and in the process
of mandating that reversal, stated as follows:
However, this Court too has its responsibility. Regard
for the requirements of the Due Process Clause ‘‘ines-
capably imposes upon this Court an exercise of judg-
ment upon the whole course of the proceedings (re-
sulting in a conviction) in order to.ascertain whether
they offend those canons of decency and fairness
which express the notions of justice of English-speak-
ing peoples even toward those charged with the most
heinous offenses.”
—Rochin v. California, 342 U.S. 165, 96 L.Ed.
183, 188, 72 S.Ct. 205 (1952)
We respectfully submit that the actions of the Wyoming
Supreme Court offend the canons of decency and fairness
and, in fact, discriminate against the petitioner. Its ruling
erasing the petitioner’s cause of action was not based on
a fair interpretation of the merits of the case. This is ap-
parent from the extremes the court went to in arriving at
its conclusions, extremes which clearly violated ail existing
rules of appellate practice.’ Where does one go when the
highest court in the state takes this action, without prec-
’ Most salient was the ruling by the Wyoming Supreme Court
denying the petitioner's cause of action under Nebraska law. The
four-year statute of that State, where the parties had sexual
relations, was held by the court to be not applicable because
petitioner had not learned of her infection by respondent in that
state. Such a ruling would require that no cause of action would
exist for a tort or crime unless one learned in the same state that
he was the victim of another's actions.
19
edent and without an opportunity to be heard? This court
stands as the final arbiter and protector of this petitioner's
rights. We respectfully submit that this court too has its
responsibility.
The United States Supreme Court must jealously pro-
tect the rights of individuals and their entitlement to due
process and equal protection under the law. This Court is
the only hope and protection left for the petitioner in up-
holding the verdict that the jury, in Cody, Wyoming, de-
nea to be fairly valued at more than one million dol-
ars.
II. The Determination of Facts by the Wy-
oming Supreme Court Without Basis in
the Trial Record and Even Directly Con-
tradictory to the Evidence is Contrary to
the Established Procedures of the Wyo-
ming Supreme Court and Fundamental
Principles of Law.
Margaret Housen’s case was tried by a duly em-
paneled, attentive jury in a small town in Wyoming.
That jury returned a substantial verdict in favor of
the plaintiff, and in the process answered the special
interrogatories referred to earlier in this petition. The
verdict was based on evidence introduced at the trial.
The decision by the Wyoming Supreme Court, on the
other hand, was wholly a creation of the appellate
court. As pointed out by Justice McClintock, the facts
‘‘determined”’ by the majority were in some instances
not supported by and in conflict with the actual evi-
dence.
The majority, thereby, erred in not following the
oft-repeated rule that it is not an appellate court’s
function to determine the facts and the law in a case
20
in the first instance. That must be done by the trial
court. Buckman v. United Mine Workers of America,
339 P.2d 398, 402 (Wyo. 1959). This principle has also
been recognized by this court. International Terminal
Operating Co. v. N. V. Nederl. Amerik Stoomv.
Maats, 293 U.S. 74, 21 L.Ed.2d 58, 60, 89 S.Ct. 53,
amended decision 393 U.S. 995, 21 L.Ed.2d 461, 89
S.Ct. 482 (1968); Baltimore and Carolina Line v. Red-
man, 295 U.S. 654, 79 L.Ed. 1636, 1638 (1935).
The determinations made by the Wyoming Su-
preme Court included the following:
a. As if ignoring the uncontradicted evidence
that the parties had sexual relations in a number
of states, the Wyoming Supreme Court focused
selectively on the events in New York City. The
court stated that on April 8, 1970, in New York
City, Pony Duke introduced into the body of the
laintiff, infectious pus producing bacteria
incon as gonococci, which causes the disease of
gonorrhea.’ (Majority Opinion, page 346 (20a,
21a) ). Within the same paragraph, the majority
expanded its factual determinations by finding
that, ‘‘on the morning of April 21, 1970, the de-
fendant once again at a hotel in New York City,
New York, repeated the tortious-act and once
again in the same fashion introduced into the
body of the plaintiff the bacteria of gonococci.”’
Id. at 346 (21a). These alleged statements of fact
required the Wyoming court to have a body of
knowledge that was not presented at the trial.
They represent determinations made by this
court on the basis of evidence developed and
known only by that court. Moreover, the as-
sumption by the court that New York City was
the site of infection was in direct conflict with
the medical testimony introduced at the trial
that there could be a delay in the commencement
of the infection even assuming an infectious con-
21
tact. Medically, no. state could be determined to
be the location where petitioner was infected.
b. The majority stated as follows: ‘‘We find and
hold that a cause of action arose in the State of
New York on April 8, 1970, and April 21, 1970.”
(Majority Opinion, Page 245). It would be diffi-
cult to conceive a more explicit factual finding
than this one. The initiative of the majority was
in complete conflict with the answer provided by
the jury to Interrogatory No. 1. By stating af-
firmatively that Mr. Duke was infected with gon-
orrhea during the period of April 4, 1970 through
April 21, 1970, the jury was unable to make a
medical determination of the location at which
the infection was contracted which was accom-
plished by the Wyoming Supreme Court.
c. The court determined the multiple contacts in
New York gave rise to two causes of action,
either of which could have been pursued in New
York within three years. This determination is
similar to the ag 9S pe of the multiple publi-
cation rule in a libel case. However, the court
then did not grant recognition to the other ‘‘pub-
lications’’ that occurred in other parts of the
United States. This picking and choosing of
“publications” arbitrarily denies Margaret Hou-
sata her property right to a claim against Pony
uke.
d. Specifically the majority ignored the fact that
sexual intercourse in Nebraska on April 10, 11
was as likely as New York to be the locaton that
gonococci was, as the court stated, ‘‘introduced
into the body of the petitioner.’’
e. On page 352 the majority refused to apply the
Nebraska four-year statute of limitations despite
the fact that there had been an admission by the
defendant that the parties had sexual relations
in that jurisdiction. The majority held that the
22
Nebraska cause of action arose in Washington,
D. C. since that was where the presence of gon-
orrhea in the plaintiff was confirmed. (589 P.2d
352). On that same page, the court foreclosed
Washington, D.C. as the place where a cause of
action arose because ‘“‘no tortious act was com-
mitted there’. The cour! made this factual deter-
mination despite its holding on the prior page,
351, ‘‘that gonococci may have taken hold at once
following the first exposure or the results delayed
until some later time. We cannot guess and will
not try to”
III. The Appellate Court Contrary to Its
Own Rules of Procedure, Applied to
Other Litigants, Relieved the Respond-
ent of the Burden of Showing the Appl-
icability of the Borrowing Statute and
of Proving the Affirmative Defense of
the Statute of Limitations.
As Justice McClintock properly pointed out in his
dissent, the majority relieved Pony Duke of the bur-
den of proving the applicability of the borrowing stat-
ute. There is absolutely no question at all that the law
of the forum, namely, Wyoming, is controlling for
purposes of the statute of limitations. Union Stock-
yards Nat. Bank of South Omaha v. Maika, 16 Wyo.
141, 92 P. 619 (Wyo. 1907); Riley v. Union Pacific
Railroad Co., 88 F. Supp. 391 (D.C. Wyo. 1950) af-
firmed 182 F. 2d 765 (10th Cir. 1950). The lex fori rule
can be modified only if a borrowing statute is shown
to be applicable. The defendant did not do so, and the
Wyoming Supreme Court cannot shoulder that bur-
den for him or pass it arbitrarily to Margaret Housen.
This is a matter of proof for the party asserting the
23
claim, namely the defendant:
The party pleading the statute of limitations has
the burden of proving that the action is barred.
—Garland v. True Temper Corporation. 354
F. Supp. 328, 330 (D.C.W. Va. 1973)
See Also, 5 Am Jur Trials 441, Section 63 at 582; Ray
v. Oklahoma Furniture Mfg. Co., 40 P.2d 663 (Okla.
1934); Swearingin v. Rendigs, 4 N.E.2d 695 (Ohio
1935); Wahl v. Cunningham et al, 6 S.W. 2d 576 (Mo.
1928).
The burden upon defendant Duke to prove the bar
of the statute of limitations is underscored in Wyo-
ming by the Wyoming Rules of Civil Procedure. Rule
8(c) leaves no room for doubt that the statute of lim-
itations is an affirmative defense that not only must
be asserted by the defendant. The failure to do so will
constitute a waiver of the defense.
On page 342 of the majority opinion, it stated that
Margaret Housen ‘elects to ignore the borrowing
statute.”’ Let it be emphatically stated to this Court
that Miss Housen did not ‘‘elect’’, choose, or in any
other manner, ignore the borrowing statute. Let it be
said emphatically, moreover, that Pony Duke did ab-
solutely nothing to make that statute applicable to
this case because he completely and utterly failed to
prove the application of the statute. To trigger the
borrowing statute requires the defendant to prove
‘‘where the cause of action arose.’’ Section 1-25, W.S.
1957. He simply failed to make such proof. The ma-
jority’s statement that Miss Housen ‘‘ignores”’ the
application of the borrowing statute has the same
attraction as a statement in an automobile accident
case where an appellate court reverses a jury finding
24
of negligence after the defendant neither pleaded nor
proved contributory negligence for the reasons that
the plaintiff ignored the affirmative defense. A plain-
tiff in any tort litigation has a sufficient burden with-
out a Court placing the additional burden of the de-
fendant’s affirmative defenses on his or her shoul-
ders.*
The burdens taken from Mr. Duke are even more
far-reaching. The majority opinion held that the Ne-
braska four year statute of limitations was not appli-
cable. Justice McClintock took particular exception
to this factor in both of his dissents. (589 P.2d 354)
(39a, 41a-42a) (590 P.2d. 1341) (50a-51a)
The majority at one point in its opinion seemed to
hold that discovery of a cause of action is an event
that can be forum determinative. The concurring opin-
ion places such emphasis on that theory that it argued
that Washington, D.C. should be held to be the juris-
diction where the cause of action arose even though
there is no evidence that sexual relations occurred
there, and even though there is no one who can say
whether the infection started there. (589 P.2d at 353)
(36a)
The discovery of a tort has the effect of determining
the date when the statute begins to run rather than
where the statute begins to run. (See Dissent of Jus-
* An application of the holding of Hicks v. U.S., 368 F.2d 626,
(4th Cir. 1966), where the defendant's negligence produced an
uncertainty regarding critical times and events, would be appos-
ite in the instant case. The respondent's concealment of his dis-
ease while he exposed the petitioner to infection in a number of
jurisdictions would place upon him the burden of showing where
and when the infection took place. See also Daniels v. Hadley,
566 F.2d 749 (D.C. Cir. 1977) and Graham v. Roberts, 441 F.2d
995 (D.C. Cir. 1970).
25
tice McClintock.) Id at 354 (38a, 39a). This factor
becomes important because the majority summarily
eliminates Nebraska’s four year statute of limitations
by using the discovery concept to jump to Washing-
ton, D.C.: “If the Wyoming discovery rule, footnote
8, is followed, then the cause of action as to Nebraska
arose in Washington, D.C. where the presence of gon-
orrhea in plaintiff was confirmed.’’ (Majority Opinion,
page 352.) (34a) This misconstrues the function of
discovery of a tortious offense on one’s person. Jt
starts the clock but it does not determine the state in
which the clock will start ticking.
The summary treatment given to the Nebraska four
year statute is inappropriate. There can be no ques-
tion that had the only sexual contact between Miss
Housen and Mr. Duke occurred in Nebraska on April
11, 1970, and that the discovery occurred on April 20,
or April 21, Miss Housen would have had a cause of
action against Mr. Duke. How can The Wyoming Su-
preme Court eliminate this cause of action? The ma-
jority simply ignores the Nebraska statute and in so
doing deprives Miss Housen of the constitutional
rights discussed herein.
The reasoning behind this conclusion rests on the
fact that the lex fori is controlling unless the defend-
ant can prove the applicability of the borrowing stat-
ute. As mentioned earlier, that is the defendant’s bur-
den and it has not been met. As to the Nebraska
statute, the defendant would not only have to show
that the cause of action did not arise in Nebraska but
he would have to prove where the cause of action did
arise. That has not been done and it is improper for
the Wyoming Supreme Court to attempt to shoulder
Mr. Duke’s burden on the appellate level, particularly
26
when the evidence presented at the trial level did not
justify any finding by this Court that the cause of
action accrued in a state other than the State of Wy-
oming.
IV. The Appellate Presumption That Evi-
dence Must Be Viewed in a Light Most
Favorable to the Prevailing Party Was
Violated in the Majority Opinion.
The Wyoming Supreme Court has consistently
maintained that all evidence must be viewed in the
light most favorable to the prevailing party. Overcase
v. Baldwin, 544 P. 2d 464, 465 (Wyo. 1976). This
principle of appellate procedure has necessitated the
rule that the Wyoming Supreme Court must “‘leave
out of consideration entirely evidence of the unsuc-
cessful party, in conflict therewith; and give to the
evidence of the successful party every favorable in-
ference which may be reasonably and fairly drawn
from it.” Zitterkop v. Roussalis, 546 P. 2d 436, (Wyo.
1976)
Even the majority opinion affirmed this guiding
principle of appellate practice with the following
statement:
Whenever we refer in this opinion to dates, places
or circumstances, such reference will be derived
entirely from the evidence of the plaintiff, undis-
puted facts and answers of the jury to interro-
gatories propounded by them. We will disregard
any evidence of the defendant in conflict.
—Majority Opinion, page 340. (7a)
After making the above statement, however, the
majority proceeded to construe the evidence in the
light most favorable to Mr. Duke. Examples of this
27
reversal of the presumption are the following:
The majority simply ignored the jury’s determi-
nation as reflected in its Answer to Interrogatory
No. 1. In that interrogatory the jury answered
affirmatively the question ‘‘Do you find that the
Defendant was infected with gonorrhea during
the period of April 4, 1970, through April 21,
1970?”’ Thus, the jury only determined that the
infection occurred sometime during that time pe-
riod; further clarification of the occurrence was
not possible, nor was further clarification re-
vealed by the evidence. Yet, in spite of the jury's
declaration, and in spite of the absence of evi-
dence shedding further light on this point, the
majority opinion declared that “‘We find and hold
that a cause of action arose in the State of New
York on April 8, 1970, and April 21, 1970.”
—(Majority Opinion, Page 345 (18a),
emphasis added)
The evidentiary judgment which the majority made
unfavorably to Miss Housen was placed in sharp focus
by the court’s own language later in the opinion. On
Page 351 the court said ‘‘in this case there is no proof
as to just when plaintiff was actually infected—the
only medically certain inference is that she had gon-
orrhea in New York on April 21, 1970. The gonococci
may have taken hold at once following the first ex-
posure or the results delayed until some later time.
We cannot guess and will not try to.”’ (Page 351) (32a)
In spite of this declaration by the Court, the eviden-
tiary assumptions mentioned earlier were made to
support the court’s finding and holding on Page 345
(18a) that the cause of action arose in New York and
the evidentiary conclusions that the tort was commit-
ted and the infection introduced into the body of the
Plaintiff in New York. (Page 346) (21a)
28
Margaret Housen petitions this Court not in the
posture of a litigant who merely lost her case on ap-
peal. Instead, she petitions this Court as a litigant
who had a valid cause of action, and a proper jury
verdict, wrested from her in an arbitrary and unrea-
sonable manner
An individual’s cause of action is a right that must
be treated fairly, equally, and with the protections of
due process. It must not be made the subject of ‘‘spe-
cial’’ appellate rules that are not applied in other cas-
es. If the Wyoming Supreme Court is not to make
factual determinations for other causes of action, then
it must not do so for Margaret Housen. If the Wyo-
ming Supreme Court is not going to grant the appel-
lant the evidentiary presumption for other causes of
action, then it must not grant that presumption to
Respondent Duke. If the Wyoming Supreme Court is
going to require defendants in other cases to prove
their affirmative defenses, then it must do so in this
case.
The judgment of the Wyoming Supreme Court vi-
olates the constitutional protections granted to Mar-
garet Housen by the Fourteenth Amendment.
CONCLUSION
For the foregoing reasons the Court should grant the
petition and issue a Writ of Certiorari to the Supreme
Court of Wyoming.
Respectfully submitted
ROBERT J. STANFORD
Attorney for
Petitioner
APPENDIX
la
APPENDIX A
“SUPREME COURT OF WYOMING.
No. 4811.
“Pony” DUKE,
Appellant (Defendant below),
Vv.
MARGARET HOUSEN,
Appellee (Plaintiff below).
Jan. 12, 1979.
Rehearing Denied March 2, 1979.
See 590 P.2d 1340.
Robert A. Gish, Basin, and R. R. Bostwick, Casper,
signed the briefs. R. R. Bostwick, Casper, appeared in oral
argument on behalf of appellant.
G. L. Spence, Casper, signed the briefs and appeared in
oral argument on behalf of appellee.
Before RAPER, C. J., and GUTHRIE, McCLINTOCK
and THOMAS, JJ., and ARMSTRONG, D. J., Retired.
RAPER, Chief Justice.
In the appeal now before the court, appellant-defendant
challenges the jury verdict and district court judgment
entered against him awarding to appellee-plaintiff, based
upon defendant’s alleged grossly negligent infection of
plaintiff with venereal disease, compensatory and punitive
damages in the sum of $1,300,000. Through this appellate
challenge, defendant raises the following questions:
1. Is the action barred by a statute of limitations?
2. Are the damages excessive?
3. Is the defense of assumption of risk or other de
fense a bar to plaintiff's recovery as a matter of
law?
2a
4. Was there reversible error in the admission of the
testimony of Janet Woodenlegs?
5. Were the instructions on punitive damages im-
proper?
6. Was there plain and fundamental error?
For the reasons stated in detail herein, we shall reverse on
the ground that the action is barred by the statute of
limitations and not consider the other issues.
In early April, 1970, plaintiff was living, working, and
going to college part-time in the Washington, D.C. area.
On April 4 of that year she was introduced by her brother
to defendant; and on the same night and early morning of
April 5, following dinner and dancing plus moderate drink-
ing, engaged in sexual intercourse with defendant in the
front seat of his pickup truck. On April 8th, at least par-
tially in response to defendant’s sudden and convincing
professions of love and desire to marry, plaintiff met de-
fendant at the LaGuardia airport in New York and sub-
sequently traveled by truck with him from New York to
Denver, Colorado, engaging on and off in acts of sexual
intercourse with defendant along the way. Upon reaching
Denver, defendant, having lost interest in plaintiff, lodged
her in a local hotel and left for his home in Meeteetse,
Wyoming. Plaintiff, after contacting her brother and wait-
ing for him to arrive, subsequently traveled to Meeteetse
and confronted defendant concerning his behavior. As a
result, it was agreed that defendant would accompany
plaintiff and her brother back to Washington, D.C. and
apologize to the family; yet after arriving in Washington
and discussing the situation with her family, plaintiff for
some reason which is neither totally clear nor probably
capable of elucidation, accompanied the defendant to New
York, there occupying a hotel room together and engaged
once more in sexual intercourse with him. Finally, on the
morning of April 21, 1970, defendant broke off his relation-
ship with the plaintiff and informed her for the first time
3a
that he had venereal disease, gonorrhea, and that now she
probably had it too.
At trial, through the presentation of voluminous testi-
mony by both parties, it was established that at some time
prior to March 22, 1970, defendant had become aware that
he was probably infected with venereal disease for on that
day he visited a doctor in Dallas, Texas, complaining of
pain and a urethral discharge. In response, the examining
physician took a sample of the discharge for testing and
administered a large dosage of fast-acting penicillin, telling
defendant to return the next day for the test results. When
defendant returned on March 23, 1970, the test results for
gonorrhea having been found positive, a larger dose of a
longer-acting penicillin was administered and defendant
was advised to see his own doctor for further treatment.
Defendant then left by plane for New York, arriving the
same day, March 23, where immediately upon arrival he
contacted his own physician, who after an external exam-
ination, stated that he could find no “clinical evidence of
gonorrhea’’—defendant had no current urethral discharge.
On the basis of the previous treatment and this current
information, defendant asserted at trial that it was his
belief that as of his first sexual contact with the plaintiff
on the night of April 4-5, 1970, his infection with gonor-
rhea had been cured.
Plaintiff, after being told by defendant on April 21, 1970,
that she had probably contracted gonorrhea from him and
should see a doctor, left New York for Washington, D.C.
and, the following day, April 22, 1970, visited her personal
physician who through a smear test confirmed that gon-
orrhea was present. In response to medication, plaintiff's
infection with what her physician described as a “classic
case of asymptomatic gonorrhea”’ was arrested by May 14,
1970, but more serious problems were to develop. Begin-
ning in January, 1973, plaintiff noticed a pain in her lower
right side which by March, 1973, had become so severe and
constant as to require medical attention. After various
4a
external medical tests provided negative results and anti-
biotic medication proved ineffective, major exploratory
~.. Surgery was performed in July, 1973. As a result, plaintiff's
phySician found that because of the gonorrhea infection,
and possibly other related secondary infections as well,
scar tissue adhesions had formed within a number of areas
of appellee’s lower abdomen. He testified that although he
had lysed (loosened or detached by surgical procedures)
the adhesions, thus somewhat relieving temporarily the
severe pain, because of the nature of the scar tissue in-
volved, new adhesions would eventually form and the pain
would very probably return again and continue in this
cyclical manner for the remainder of plaintiff's life. He
further advised that because of the scarring involved,
plaintiff's ability to bear children had been greatly re
duced.
This case is not the first lawsuit filed by the plaintiff
against defendant. The record discloses that on April 5,
1971, a complaint was filed in a case entitled Margaret
Housen v. Angier St. George Biddle Duke, Jr., Civil No.
8557, in the District Court, Fifth Judicial District, Park
County, Wyoming, which recited the relationship between
plaintiff and defendant with dates and events consistent
with plaintiff's testimony in the instant case, including the
following:
(6) That the Plaintiff did thereafter learn that she
had contracted from Defendant a venereal disease, as
a result of which the Plaintiff was subjected to med-
ical expense for the care and treatment thereof, to-
gether with great pain, suffering, disgrace and humil-
iation in the eyes of her family and friends.
(7) That the Defendant, at the times and places
aforesaid, and knowing that he was infected with a
communicable venereal disease, did then and there
negligently, carelessly, and with utter and wanton
disregard for the rights of the Plaintiff, expose and
5a
transmit to the Plaintiff an infectious venereal dis-
ease.
(8) That as a proximate result of the negligent and
careless acts of the Defendant, as aforesaid, the Plain-
tiff has suffered damages, and will continue to suffer
damages from her humiliation and disgrace as afore-
said, damages in the sum of $100,000.00.
“WHEREFORE plaintiff prays judgment against
the defendant as follows:
“(a) For general damages for her medical expenses,
pain, suffering, disgrace and humiliation in the sum
of $100,000.00;
“(b) For punitive damages in the sum of
$100,000.00;
‘(c) For her costs incurred in this action; and
‘(d) For such other and further relief as to the Court
may seem just and proper.”’
That complaint is noticed by the trial judge in two of his
orders. That case was later dismissed.
Plaintiff filed this new action on April 19, 1974, seeking
hospital expenses, doctor’s expenses, wage loss, future
medical expense, as well as damages for pain and suffering,
present and future. In addition, based on an allegation
that defendant was guilty of gross negligence when he
infected her with gonorrhea, plaintiff requested $1 million
in exemplary damages. By interrogatory, the jury found
that defendant had been infected with gonorrhea at the
time of his relations with plaintiff between April 4 and
April 21, 1970;' and by verdict awarded plaintiff
' Interrogatories to the jury and its answers were:
“Interrogatory No. 1: Do you find that the Defendant was
infected with gonorrhea during the period of April 4, 1970
through April 21, 1970? /s/Yes
6a
$300,000.00 in compensatory damages, and $1,000,000.00
in exemplary or punitive damages. Following denial of var-
ious posttrial motions, the appeai herein was filed.
By way of both the answer filed in response to plaintiff's
complaint as well as by motions prior, during and after
trial, defendant alleged and strongly argued that based
upon applicable statutes and case law, plaintiff's cause of
action had been barred by the passage of time and her
complaint should therefore be dismissed. Rule 8(c),
W.R.U.P. requires that the statute of limitations be spe-
cifically set forth as an affirmative defense. In response,
the trial judge ruled that inasmuch as plaintiff's scar adhe-
sions had not been discovered until a date much later than
when the infection itself had occurred, the applicable time
period for limitation of action purposes was to be computed
only from discovery of the adhesions; and defendant's as-
sertion was thus denied.
Statutes of limitation have long been a part of the jur-
isprudence of the United States, all its states and the State
of Wyoming. They are pragmatic devices to save courts
from stale claim litigation and spare citizens from having
to defend when memories have faded, witnesses are un-
available by death or disappearance and evidence is lost.
“Interrogatory No. 2: Do you find that the Plaintiff was
advised on April 18, 1970 that the Defendant had or had
had gonorrhea? /s/No
The purported significance of Interrogatory No. 2 is that plain-
tiff field her action on April 19, 1974. Defendant produced
evidence that plaintiff was informed on April 18, 1970, that
he had gonorrhea. If believed by the jury, that would, it was
theorized as a matter of law, foreclose plaintiff under Wyo-
ming’s four year statute, § 1-3-105, W.S.1977, infra. The
defendant himself denied telling plaintiff at any time that he
had gonorrhea. The information purportedly was supplied to
plaintiff by friends of the defendant. We need not consider
what its effect might have been because it would raise only an
academic question.
Ta
Statutes of limitation are arbitrary by their very nature
and do not discriminate between the just and unjust claim.
They are not judicially made but represent legislative and
public policy controlling the right to litigate. Chase Secu-
rities Corporation v. Donaldson, 1945, 325 U.S. 304, 65
S.Ct. 1137, 89 L.Ed. 1628; reh. den. 325 U.S. 896, 65 S.Ct.
1561, 89 L.Ed. 2006. The statutes operate against even
the most meritorious of claims and courts have no right to
deny their application. In re Smith’s Estate, 1949, 240
Iowa 499, 36 N.W. 2d 815, 8 A.L.R.2d 640. When consid-
ering the statute of limitations, the nature of injury, its
extent, the amount of money damages involved, social
considerations, and the emotional appeal the facts may
- have must pass to the background. The circumstances are
only significant in the bearing they may have on where the
cause of action arose, when it arose and when the time
expired for pursuing the applicable judicial remedy.
Wherever we refer in this opinion to dates, places, or
circumstances, such reference will be derived entirely from
the evidence of the plaintiff, undisputed facts and answers
of the jury to interrogatories propounded to them. We will
disregard any evidence of the defendant in conflict. There
is therefore left only a question of law to decide. We ca-
not and will not decide any questions of fact.
At the very foundation of plaintiff’s claim against de-
fendant lie the principles of the law of tort. One who neg-
ligently exposes another to an infectious or contagious
disease, which such other person thereby contracts, can be
held liable in damages for his actions. Earle v. Kuklo, 1953,
26 N.J. Super. 471, 98 A.2d 107 (tuberculosis); Edwards
v. Lamb, 1899, 69 N.H. 599, 45 A. 480 (infection from a
wound); Kliegel v. Aitken, 1896, 94 Wis. 432, 69 N.W. 67
(whooping cough); Franklin v. Butcher, 1910, 144 to. Mo.
App. 660, 129 S.W. 428 (smallpox). Yet while the basic
claim raised by plaintiff, albeit an unusual one, sounds in
tort, the circumstance of its pursuance in Wyoming is
8a
somewhat unique. Since, as the evidence points up, there
was no sexual contact between plaintiff and defendant in
Wyoming, nor any tortious injury in this state, simple
logic reveals that there could be no tortious conduct, no
negligent exposure of plaintiff's body to disease by de-
fendant in this, the forum state. There can be no question
that plaintiff's cause of action could only be found as hav-
ing arisen elsewhere.
An actionable tort is made up of several elements. A
cause of action must arise before limitations start./Prosser,
Torts, 4th Ed., § 30, pp. 143-44, outlines the steps:
‘Negligence, as we shall see, is simply one kind of
conduct, But a cause of action founded upon negli-
gence, from which liability will follow, requires more
than conduct. The traditional formula for the ele-
ments necessary to such a cause of action may be
stated briefly as follows:
‘1. A duty, or obligation, recognized by the law,
requiring the actor to conform to a certain standard
of conduct, for the protection of others against unrea-
sonable risks.
‘2. A failure on his part to conform to the standard
required, These two elements go to make up what the
courts usually have called negligence; but the term
quite frequently is applied to the second alone. Thus
it may be said that the defendant was negligent, but
is not liable because he was under no duty to the
plaintiff not to be.
‘3. A reasonable close causal connection between
the conduct and the resulting injury. This is what is
commonly known as ‘legal cause,’ or ‘proximate
cause.
‘4. Actual loss or damage resulting to the interests
of another. Since the action for negligence developed
chiefly out of the old form of action on the case, it
Ya
retained the rule of that action, that proof of damage
was an essential part of the plaintiff's case. Nominal
damages, to vindicate a technical right, cannot be
recovered in a negligence action, where no actual loss
has occurred. The threat of future harm, not yet re-
alized, is not enough. Negligent conduct in itself is
not such an interference with the interests of the
world at large that there is any right to complain of
it, or to be free from it, except in the case of some
individual whose interests have suffered.
*_* * * * ©
“It follows that the statute of limitations does not
begin to run against a negligence action until some
damage has occurred.
*_*+ * + * mr
(Footnotes omitted.)
A “cause of action” is the fact or combination of facts
which give rise to a ‘“‘suit’’, the latter being a proceeding
to enforce a right. State ex rel. Merritt Oil Corporation v.
District Court of Sixth Judicial District In and For Con-
verse County, 1932, 44 Wyo. 437, 13 P.2d 568, 570, cert.
den. 287 U.S. 667, 53 S.Ct., 291, 77 L.Ed. 575. This court
very recently in Cantonwine v. Fehling, Wyo. 1978, 582
P.2d 592, a promissory note case, with approval quoted
from Bruner v. Martin, 1907, 76 Kan. 862, 93 P. 165, 166:
“* * * But the time when the cause of action ar.ses
determines also the place where it arises; for when
that occurs which is the cause of action, the place
where it occurs is the place where the cause of action
arises, * * *”’
The heavy weight of authority in interestate tort cases
such as here with elements in different jurisdictions, is
that the law of the place where the plaintiff sustains injury
to her person controls. Restatement of Conflict of Laws,
§ 377; 2 Harper and James, § 30.4, p. 1961.
10a
At common law, the limitation period of the forum ju-
risdiction, the lex fori, generally controlled the time within
which causes of action had to be pursued, regardless of the
fact that the cause itself in all its elements may have
accrued outside the forum jurisdiction. Only when the lim-
itation of action statute of the foreign jurisdiction in which
the cause arose could be deemed substantive law rather
than procedural would the foreign statute be applied by
the forum court. Parish v. B. F. Goodrich Co., 1975, 395
Mich. 271, 235 N.W.2d 570; Ehrenzweig, Conflict of Laws
§ 161 (1962); Vernon, Statutes of Limitation in the Conflict
of Laws; Borrowing Statutes, 32 Rocky Mtn.L.Rev. 287
(1960). In order to avoid the confusion and problems as-
sociated with attempting to determine when a foreign lim-
itation of action statute was substantive or procedural, a
majority of states, including Wyoming, enacted what are
referred to as “borrowing” statutes. Section 1-3-117,
W.S.1977,? which we find to be controlling in this regard,
is simple and clear:
“If by the laws of the state or country where the
cause of action arose the action is barred, it is also
barred in this state.”
[5] The plaintiff takes an unusual position that since the
case is tried in Wyoming, it must be tried under Wyoming
law as a whole, including § 1-3-105, W.S.1977,° prescrib-
* The only change since enacted by the Ninth Legislative As-
sembly of the Territory of Wyoming as part of the Code of Civil
Procedure by § 43, Chapter 60, Session Laws of Wyoming Ter-
ritory, 1886, has been to change the last word of the provision
from ‘“‘territory’’ to ‘‘state.’’ Since, it has appeared as: R.S.1887,
§ 2379; R.S.1899, § 3464; C.S.1910, § 4308; C.S.1920, § 5577;
R.S.1931, § 89-419; C.S.1945, § 3-520, W.S.1957, § 1-25; Laws
1977, ch. 188, § 1.
* Section 1-3-105, W.S.1977, in pertinent part provides:
‘‘(a) Civil actions other than for the recovery of real prop-
lla
ing a period of limitation of four years ‘‘after the cause of
action accrues,”’ pertaining to causes of action arising in
Wyoming. She then asserts that under the statutory sec-
tion, since she discovered she was infected with gonorrhea
“around April 22, 1970,” her action was timely brought
within the Wyoming four year period by filing her com-
plaint on April 19, 1974. She elects to ignore the borrowing
statute, § 1-3-117, supra. She then relies upon Union
Stockyards Nat. Bank of South Omaha, Nebraska v.
Maika, 1907, 16 Wyo. 141, 92 P. 619; and Riley v. Union
Pacific Railroad Co., U.S.D.C. Wyo.1950, 88 F.Supp. 391,
aff'd. 10th Cir. 1950, 182 F.2d 765 to support a 51 Am.
Jur.2d, Limitation of Actions, § 66, p. 645 statement as
follows:
“* * * the statutes of limitation of the place where
the action is brought and the remedy is sought to be
enforced, and not those of the place where the con-
tract was made, the right in tort arose, or the plaintiff
resides, or of the domicil of one or the other of the
persons affected by the litigation, control in the event
of a conflict of laws. * * *”
We have no argument with that rule in the case before us
but we have no conflict of laws to make it applicable. Any
conflict has been erased by the legislature by enactment
of the “borrowing”’ statute fixing the statute of limitations
of this state to be the same as that of the jurisdiction in
erty can only be brought within the following periods after
the cause of action accrues:
* e+: + * & *
(iv) Within four (4) years, an action for:
* ¢+ + &© &© &
“(C) An injury to the rights of the plaintiff, not arising
on contract and not herein enumerated; and
zs + *+ * *& *
12a
which the cause of action arose. That is explained in the
next section (67) of the Am.Jur.2d, supra, quote. The lim-
itations law of the jurisdiction in which a cause of action
arises is the law of this state and has been ever since
territorial days, even though a defendant is properly before
a Wyoming court, the place where he may be personally
served with process and a remedy found.
The position we take in this case is entirely consistent
with the past utterances of this court with respect to caus-
es of action arising outside the state of Wyoming. It was
declared to be the law of this state, in Ball v. Ball, 1954,
73 Wyo. 29, 269 P.2d 302, 304, quoting from 15 C.J.S.
Conflict of Laws § 12, p. 897 (now 15A C.J.S. Conflict of
Laws § 12(2) pp. 453-455):
“It is thoroughly established as a general rule that
the lex loci delicti, or the law of the place where the
tort or wrong has been committed, is the law that
governs and is to be applied with respect to the sub-
stantive phases of torts or the actions therefor, and
determines the question of whether or not an act or
omission gives rise to a right of action or civil liability
for tort, * * *.’”
That rule is likewise in tune with the legislative policy of
the state announced in its limitations ‘“‘borrowing”’ statute.
Cope v. Anderson, 1947, 331 U.S. 461, 67 S.Ct. 1340, 1343,
91 L.Ed. 1602, points out that the bottom line purpose of
a state’s borrowing statute is to require its courts to bar
suits if the right to sue had already expired in another
jurisdiction where the crucial combination of circumstan-
ces giving the right to sue had taken place, the existence
of which affords a party a right to judicial interference in
his behalf.
Plaintiff also argues, and the trial judge so held, that
the statute of limitations did not commence to run until
October, 1973, when adhgsions resulting from the infection
were discovered because it is the injury therefrom for
13a
which the damages are sought.‘ That position is not the
accepted rule. The correct rule is very well summarized in
51 Am.Jur.2d, Limitation of Actions, § 135, p. 704:
“* * * As a general rule, where an injury, although
slight, is sustained in consequence of the wrongful act
of another, and the law affords a remedy therefor, the
statute of limitations attaches at once. It is not re
quired that all the damages resulting from the act
shall have been sustained at that time, and the run-
ning of the statute is not postponed by the fact that
‘The full text of the trial judge’s order in regard to dividing
damages to control the running of limitations:
“THIS MATTER, having come on to be heard by the
Court on a conference call between the parties, the Court
having heard the arguments of counsel and being fully ad-
vised in the premises, finds with respect to the application
of the Statute of Limitations in this case, as follows:
“1. That there is no question in the Court’s mind but
what Wyoming law pertaining to the Statute of Limitations
is based upon discovery of the injury;
“2. Therefore, the Court finds that if the evidence sup-
ports said statements, the Statute did not begin to run
insofar as the adhesions were concerned until 1973;
“3. That in reviewing the original case which was filed
April 5, 1971 and the present complaint, paragraph 2 there-
of, there is no question but what the Plaintiff knew imme
diately after the incidents in question that she had been
infected, and therefore the Court finds that insofar as any
recovery for humiliation, etc for the alleged infliction of the
disease, is barred by reason of the Statute of Limitations.
“IT IS THEREFORE ORDERED BY THE COURT:
“1. That the Statute of Limitations did not begin to run
insofar as the adhesions were concerned, until 1973;
“2. That recovery for humiliation, etc. for the alleged
infliction of the disease, is barred by reason of the Statute
of Limitations.”
l4a
the actual or substantial damages do not occur until
a later date. The act itself is regarded as the ground
of the action, and is not legally severable from its
consequences. * * *’’
The doctrine is well supported by voluminous authority.
We have selected some examples involving physical injury.
By various ways and expressions they illustrate the rule.
A cause of action accrues only when forces wrongfully put
in motion produce injury. Schwartz v. Heyden Newport
Chem. Corp., 1963, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188
N.E.2d 142, 4 A.L.R.3d 814, cert. den. 374 U.S. 808, 83
S.Ct., 1697, 10 L.Ed.2d 1032 (substance later learned to be
dangerous injected in plaintiff's sinuses; discovered to be
cause of cancer after limitation had run; plaintiff lost an
eye as a result; action barred). A single act of negligence
creates only one cause of action and damage arising years
later from that act of negligence does not create a new
cause of action. Schmidt v. Merchants Despatch Trans-
portation Company, 1936, 270 N.Y. 287, 200 N.E. 824, 104
A.L.R. 450 (pneumoconiosis).
The statute of limitations attaches when there has been
notice of the invasion of a legal right of the plaintiff, even
though notice of its consequences does not materialize
until later. Cristiani v. City of Sarasota, Fla.1953, 65 So.2d
878 (child struck violently about head by negligence of
another, blindness developing as a result after statute had
run; recovery denied). See also, Nardone v. Reynolds,
Fla.1976, 333 So.2d 25, citing Cristiani. In Dowling v.
Lester, 1946, 74 Ga.App. 290, 39 S.E.2d 576, the defendant
restauranteur was negligent in serving food containing a
rock to plaintiff, which she bit down on resulting in a
broken tooth, the rest of which was immediately extracted
by a dentist and replaced with a denture attached to an
* See also Anno. 4 A.L.R.3d 821, 830, § 4 entitled ‘Statute of
Limitations: When Cause of Action Arises on Action Against
Manufacturer or Seller of Product Causing Injury or Death.”’
————
15a
adjoining tooth. The adjoining tooth in time came loose,
soreness developed and plaintiff developed a related phys-
ical condition, an injury to her person. The action was not
brought within the applicable period of limitation from the
date the tooth was broken. It was held that the new extent
of injury arising from complications did not start the stat-
ute running anew.
Applying Louisiana law in Nivens v. Signal Oil and Gas
Co., Inc., 5th Cir. 1975, 520 F.2d 1019, reh. den., amend.,
523 F.2d 1382, cert. den. 425 U.S. 912, 96 S.Ct. 1509, 47
L.Ed.2d 763, plaintiff struck his head on a galley cabinet
door suffering pain, dizziness, a red spot and swelling, later
discovered to be a skull fracture with serious after effects.
The Court held that the injuries could not be bifurcated
and the later found complications made the subject of
another and delayed prescriptive period. Where a coinci-
dence of the negligent act and the fact of some damage
occurs, the cause of action comes into being and the ap-
plicable statute of limitations begins to run, even though
the ultimate damage is unknown or unpredictable. Dalton
v. Dow Chemical Co., 1968, 280 Minn. 147, 158 N.W.2d
580 (poisoning from exposure to chemical in cleaning sol-
vent; paraplegic barred).* To allow successive actions as
*See also to the same effect: Sanchez v.. Wade, Tex.Civ.
App.1974, 514 S.W.2d 812. (Once patient knows condition, cause
of action accrues, regardless of ignorance of extent and perma-
nency of disease.) Christian v. Daniell Battery Manufacturing
Co., Inc., La.App.1973, 279 So.2d 214. (Plaintiff aware that he
was injured and was treated; later complications did not post-
pone starting of limitations.) Rankin v. Sowinski, 1972, 119
N.J.Super. 393, 291 A.2d 849. (Plaintiff knew jaw injured by
dentist at time of extraction of tooth; cause accrued; lack of
knowledge of extent of injury does not toll the statute of limi-
tations.) Caudill v. Arnett, Ky.1972, 481 S.W.2d 668. (Injury
known; not fully aware of extent of injury until several years
later discovered during exploratory surgery; barred.) Matthieu
v. Piedmont Natural Gas Company, 1967, 269 N.C. 212, 152
S.E.2d 336. (Cause of action springs into existence with first
16a
additional damages arise would nullify the statutes of lim-
itation and defeat their very purpose.
The jury found as a fact that the defendant was the
bearer of gonorrhea during the period April 4, 1970 to
April 21, 1970. The plaintiff's testimony, admitted by the
defendant, is that sexual intercourse between the plaintiff
and defendant took place on the dates and in other state
jurisdictions in accordance with an itinerary as follows:
April 4-5, 1970. State of Virginia.
April 7-8, 1970. Tuxedo, New York.
Arpil 8-9, 1970. Erie, Pennsylvania.
April 9-10, 1970. State of Iowa.
April 10-11, 1970. Ogallala, Nebraska.
April 20-21, 1970. New York City, New York.
There is no evidence of sexual intercourse taking place in
the State of Wyoming. We must therefore look elsewhere
for a jurisdiction in which the cause arose. While it is
perhaps unusual that the defendant perpetrated his neg-
ligent acts and caused injury to plaintiff's body in several
different states and which may give an appearance of com-
plexity, an application of settled rules of tort law in the
jurisdictions involved clears away any suggestion of ob-
scurity.
The limitation of action statute of the foreign jurisdic-
tion in which the cause in question arose is applied by the
forum court irregardless of whether or not the foreign
damage; subsequent damage does not start a new cause of ac-
tion). Street v. Consumers Mining Corporation, 1946, 185 Va.
561, 39 S.E.2d 271, 167 A.L.R. 886. (Plaintiff contracted silicosis
1936, discovered 1940, died from disease 1942; running of statute
not postponed by fact that substantial damage did not occur
until after statute had run.)
17a
limitation could be characterized as substantive or proce-
dural. Thus, in almost all instances, if a plaintiff's cause of
action is time-barred in the jurisdiction in which the cause
of action arose, it would be barred by the passage of time
in the forum court as well. Such a rule not only clears up
any substantive procedural conflict problem, but elimi-
nates as well the possibility of the plaintiff shopping for a
favorable forum in which to revive a dead claim. Long v.
Pettinato, 1975, 394 Mich. 343, 230 N.W.2d 550; Ehren-
zweig, Conflicts of Law, § 161 (1962); Vernon, supra, 32
Rocky Mtn.L.Rev. 287. It thus becomes of acute impor-
tance in the situation at bar to specifically determine, for
limitation of actions purposes, where and when plaintiff's
cause of action arose. In making such a determination
based upon a borrowed limitational period, in all jurisdic-
tions having a borrowing statute, with the exception of
Ohio, not only is the specific prescriptive period utilized,
but all of its accouterments as well whether in the form of
additional statutory provisions or interpretive judicial de-
cisions. Ester, Borrowing Statutes of Limitation and Con-
flict of Laws, 15 U. of Fla.Law Rev. 33, 57 (1962). As the
court in Devine v. Rook, Mo.App.1958, 314 S.W.2d 932,
935, has very aptly stated:
“But when such [limitational] statute is so bor-
rowed, it is not wrenched bodily out of its own setting,
but taken along with it are the court decisions of its
own state which interpret and apply it, and the com-
panion statutes which limit and restrict its operation.
This we think is the general law.’ (Bracketed material
added, footnote omitted.)
Thus, in applying a “borrowed” statute, we must consider
not only the borrowed limitation of action statute itself,
but also any applicable tolling or other statutes as well as
pertinent court cases. In effect, plaintiff's cause must be
18a
viewed as if filed in the state where under the laws of that
state a cause of action accrued.’
We find and hold that a cause of action arose in the
state of New York on April 8, 1970 and April 21, 1970.
New York City, New York was the place where the de-
fendant committed his second and last acts of negligence
in communicating disease to the plaintiff. In New York it
has long been the rule that in classic actions of negligence,
damage is the gist and essence of a plaintiff's cause,
Schwartz v. Heyden Newport Chemical Corporation, su-
pra, and the statute of limitations commences to run at
the time injury is produced (in personal injury cases) and
there is damage to the structure of the body. Schwartz
holds that the cause of action is complete when the inva-
sion of the body by injury takes place “independently of
any actual pecuniary damage.” The injury is considered a
trespass upon the person of the injured plaintiff.
’ During the remaining course of this opinion, we shall be citing
and quoting from the statutes of other states. As allowed by the
law of the State of Wyoming, we shall take judicial notice of
those considered. Section 1-12-302, W.S. 1977:
“Every court of this state shall take judicial notice of the
common law and statutes of every state, territory and other
jurisdiction of the United States.”
Section 1-12-303, W.S. 1977:
“The court may inform itself of foreign laws in such man-
ner as it deems proper, and the court may call upon counsel
to aid it in obtaining such information.”
Counsel for defendant informed the trial judge of his reliance on
the statutes of limitation of other states. The statutes we set out
are those applicable at the time of the occurrence herein aud are
found in the Wyoming State Law Library, Cheyenne.
19a
The court in Schwartz strongly relied on Schmidt v. Mer
chants Despatch Transportation Company, supra, the
court in the latter case stating at 200 N.E. 827:
“That does not mean that the cause sf section accrues
only when the injured person kn ws or should know
that the injury has occurred. The injury occurs when
there is a wrongful invasion of personal or property
rights and then the cause of action accrues. Except in
cases of fraud where the statute expressly provides
otherwise, the statutory period of limitations begins
to run from the time when liability for wrong has
arisen even though the injured party may be ignorant
of the existence of the wrong or injury. Consequential
damages may flow later from an injury too slight to
be noticed at the time it is inflicted. No new cause of
action accrues when such consequential damages
arise. So far as such consequential damages may be
reasonably anticipated, they may be included in a
recovery for the original injury, though even at the
time of the trial they may not yet exist. When sub-
stantial damage may result from any wrong affecting
the person or property of another, a cause of action
for such wrong immediately accrues.”’ [Citation of cas-
es omitted.]
‘“‘We must apply that rule here. The injury to the
plaintiff was complete when the alleged negligence of
the defendant caused the plaintiff to inhale the dele-
terious dust. For that injury, including all resulting
damages, the defendant was then liable. The disease
of the lungs was a consequence of that injury. Its
result might be delayed, or, perhaps, even by good
fortune averted; nevertheless, the disease resulted
naturally, if not inevitably, from a condition created
in the plaintiff's body through the defendant’s alleged
wrong. It cannot be doubted that the plaintiff might
have begun an action against the defendant immedi-
ately after he inhaled the dust which caused the dis-
20a
ease. No successful challenge could have been inter-
posed on the ground that the action was prematurely
brought because at the time it was commenced no
serious damage to the plaintiff had yet developed. In
that action the plaintiff could recover all damages
which he could show had resulted or would result
therefrom. In effect, the plaintiff is asking this court
to hold that the statutory period of limitation begins
only from the time that the plaintiff had reasonable
assurance that serious damage had resulted or would
result from past injury. The statute provides in un-
ambiguous language that the period of limitation be-
gins to run at the moment when right to begin an
action accrues. The same test must be applied to a
challenge that the action is stale as to a challenge that
the action has been brought prematurely.”
See also Thornton v. Roosevelt Hospital, 1977, 59 A.D.2d
680, 398 N.Y.S.2d 659, wherein a substance was injected
into the plaintiff’s decedent, allegedly resulting in the on-
set of cancer. The court held that ‘‘[t]he time of invasion
of the decedent’s body, and not any later time, began the
period to be measured by the Statute of Limitation, and
any such cause would also be time-barred.’’ The court cited
Schwartz and Schmidt as standing for that rule. Where
more than the statutory period of limitations of three years
from injury (onset of cancer) had lapsed, an action based
on negligence as a cause was barred. Karp v. Liggett &
Myers Tobacco Company, 1972, 40 A.D.2d 634, 336
N.Y.S.2d 101. New York jurisprudence has never retreated
from that position in the oridinary negligently caused dis-
ease case.
The Schmidt doctrine as applied to this case means that
a cause of action arose in New York when the defendant
had sexual intercourse with the plaintiff at the Motel in
the Mountains in Tuxedo, New York on the morning of
April 8, 1970. At that time he introduced into the body of
the plaintiff infectious pus producing bacteria known as
2la
gonococci, which causes the disease of gonorrhea. There is
no question but that under the law of New York the de-
fendant was guilty of a tortious act of negligence and the
plaintiff was injured by the placement in her body of del-
eterious matter. Then on the morning of April 21, 1970,
the defendant once again at a hotel in New York City, New
York repeated the tortious act and once again in the same
fashion introduced into the body of plaintiff the bacteria
of gonococci.
It must be realized that the entire affair between plain-
tiff and defendant embraced only a period of about two
weeks so, with the period of limitations involved, it would
not make much difference whether the rule of New York,
the rule of the statute starting on the date of last exposure
mentioned elsewhere in this opinion or the rule of discovery
which we use in Wyoming,* were applied. It is not our
choice; we must accept the law of the jurisdiction where
the cause arose.’ We must therefore conclude that since
* When a cause of action arises in the State of Wyoming, the
period of limitations begins to run when the plaintiff knows or
has reason to know the existence of a cause of action. Banner v.
Town of Dayton, Wyo. 1970, 474 P.2d 300 (when the injury was
discovered); Town Council of Town of Hudson v. Ladd, 1928, 37
Wyo. 419, 263 P. 703 (when the injury and cause became appar-
ent).
* Generally, see Anno. entitled, ‘‘When limitation period begins
to run against cause of action or claim for contracting of disease,”
11 A.L.R.2d 277 and later case service.
The rule of last exposure in the case of continuing negligence in
causing disease to another is commonly accepted to be that the
injury occurs on the last day of exposure. After repeating the
first principles that a cause of action does not arise unless there
has been first a negligent act and second an actual injury, how-
ever slight proximately resulting therefrom, the court in Biglioli
v. Durotest Corporation, 1957, 44 N.J. Super. 93, 129 A.2d 727,
held that where a plaintiff is exposed over a period of time to
beryllium there is but a single indivisible continuing wrong, with
the statute running from the time of the last exposure to the
dust, irrespective of when the disease of berylliosis is discovered
22a
New York was the place of exposure, as was Schmidt’s
exposure to pneumoconiosis and the breathing of delete
rious dust causing injury, a cause of action also arose in
New York when defendant left gonococci in the plaintiff's
body. It is a reasonable inference that since gonorrhea was
found to exist in plaintiff the day after her final relations
with the defendani, it »xisted likewise in New York. Hav-
ing concluded a cause of action accrued in the State of
New York, the ‘‘borrowing”’ statute of Wyoming controls
the determination of whether or not plaintiff's action has
been barred. Under New York law, an action to recover
damages for personal injury, unless involving certain spe-
cific causes of action not relevant here, must be com-
menced within three years.'°
Plaintiff's cause of action accrued in New Yok at the
latest on April 21, 1970, the date of last sexual contact
between the parties. Disregarding for the moment any
other possibly applicable statute, plaintiff’s action not hav-
ing been filed until April 19, 1974, it appears to be barred,
and defendant has so asserted. In response, plaintiff has
urged that because of defendant’s absence from New York
or consequential damages result. The injury is present in the
. body.
The same rule was followed in Wright v. Carter Products, 2nd
Cir., 244 F.2d 53, where the defendant negligently concocted the
deodorant Arrid which plaintiff used daily over a period of time
and developed dermatitis. The court held the statute commenced
to run as of the last application.
'© New York Civil Practice Law and Rules, § 214—Actions to
be commenced within three years:
“The following actions must be commenced within three
years:
x* ¢ + © & ®
‘“*5. an action to recover damages for personal injury ex-
cept as provided in § 215;”’
23a
following his tortious conduct, the applicable limitation
period has by statute been tolled. N.Y. CPLI § 207."' We,
as did the New York Supreme Court in a recent case, must
disagree with the plaintiff. Burwell v. Whitmoyer, 1977,
56 A.D.2d 950, 392 N.Y.S.2d 512, 513:
“We now pass to plaintiff's contention that the stat-
ute of limitations was tolled pursuant to CPLR 207.
While that section does provide for the tolling of the
statute where a defendant is out of the state for more.
than four months after the action has accrued, sub-
division 3 provides for an exception where the juris-
diction over the person can be obtained without per-
sonal delivery of the summons to him within the state.
Although defendant absented himself from the state
* * * the statute of limitations, in our opinion, was
"N.Y. CPLR § 207:
“If, when a cause of action accrues against a person, he is
without the state, the time within which the action must be
commenced shall be computed from the time he comes into or
returns to the state. If, after a cause of action has accrued against
a person, he departs from the state and remains continuously
absent therefrom for four months or more, or he resides within
the state under a false name which is unknown to the person
entitled to commence the action, the time of his absence or res-
idence within the state under such a false name is not a part of
the time within which the action must be commenced. This sec-
tion does not apply:
“1. while there is in force a designation, voluntary or invol-
untary, made pursuant to law, of a person to whom a summons
may be delivered within the state with the same effect as if
served personally within the state; or
‘2. while a foreign corporation has one or more officers or
other persons in the state on whom a summons against such
corporation may be served; or
“*3. while jurisdiction over the person of the defendant can be
obtained without personal delivery of the summons to him within
the state.”
24a
not tolled by CPLR 207 (citation omitted). Plaintiff at
all times during the statutory period could have ob-
tained jurisdiction over defendant (CPLR 313; 308,
subd. [5]; 302, subd. [a], par. 2).””
See as well, Yarusso v. Arbotowicz, 1977, 41 N.Y.2d 516,
393 N.Y.S.2d 968, 362 N.E.2d 600; Goodemote v. McClain,
1972, 40 A.D.2d 22, 337 N.Y.S.2d 79; Dobkin v. Chapman,
1968, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451;
Fishman v. Sanders, 1965, 15 N.Y.2d 298, 258 N.Y.S.2d
380, 206 N.E.2d 326; Massik v. Zimmerman, 1966, 26
A.D.2d 901, 275 N.Y.S.2d 373. Under the provisicns of
N.Y. CPLR § 302, the defendant, although a non-domici-
liary of the state of New York, was still subject. to the
personal jurisdiction of the courts of that state based upon
his commission of a tortious act within the confines of the
state itself. N.Y. CPLR § 302."
Once found subject to the court’s jurisdiction, service of
process could have been made upon defendant notwith-
standing his absence from the state. N.Y. CPLR § 308."*
‘“* * * Because the alleged negligence of defendant
* * * was a tortious act committed within the State,
N.Y. CPLR § 302(a)(2)
‘$ 302. Personal jurisdiction by acts of nondomiciliaries
(a) As to a cause of action arising from any of the acts
enumerated in this section, a court may exercise personal
jurisdiction over any nondomiciliary, or his executor or ad-
ministrator, who in person or through an agent:
* * * * *& ©
‘2. commits a tortious act within the state, except as to a
cause of action for defamation of character arising from the
act; or © 9.”
'* N.Y. CPLR § 308(5):
‘‘§ 308. ‘Personal service upon a natural person shall be
made by any of the following methods:
25a
personal jurisdiction could have been acquired under
CPLR 313 and 302 by service in Florida, after defend-
ant had transferred his residence there, in any manner
in which service can be made in this State.’’ Yarusso
v. Arbotowicz, supra, 393 N.Y.S.2d at 970, 362 N.E.2d
at 602.
It would thus seem clear that had plaintiff brought this
action against defendant in New York, the situs of its
accrual, by the statutes and authorities of that state, her
cause of action would be barred. The limitational period
having run in New York, it has run in this, the forum state,
as well. § 1-3-117, W.S.1977, supra.
We observe in passing that while there is no ruling of
the trial judge here which specifically applies by reference
any foreign statute of limitations, the distinct impression
appears, particularly from the court’s order, footnote 4,
that the statute of New York was applied to keep the case
alive as to the adhesions appearing first in 1973 and their
‘5 in such manner as the court, upon motion without notice,
directs, if service is impracticable under saiechiana one,
two and four of this section.”
N.Y. CPLR § 313:
‘‘§ 313. Service without the state giving personal jurisdic-
tion
‘A person domiciled in the state or subject to the jurisdic-
tion of the courts of the state under section 301 or 302, or
his executor or administrator, may be served with the sum-
mons without the state, in the same manner as service is
made within the state, by any person authorized to make
service within the state who is a resident of the state or by
any person authorized to make service by the laws of the
state, territory, possession or country in which service is
made or by any duly qualified attorney, solicitor, barrister,
or equivalent in such jurisdiction.”’
26a
consequences. The statute of limitations goes to the cause
of action not the various elements of damages which arise
as a result of the injury. Damages excluded by the trial
judge were within the Wyoming four year limitation urged
by plaintiff as applicable.
In other jurisdictions in which defendant committed his
acts of negligence, the cause of action is likewise either
barred by a statute of limitations or no cause of action
there arose. The defendant’s first installment of negli-
gence, April 4-5, 1970, was in the State of Virginia. Ar-
guably, under the law of the state, the cause of action
could have arisen there; if indeed it did, it is likewise barred
by that state’s limitations. In Virginia, the appropriate
limitational period for personal injuries of the kind sus-
tained herein is two years,'‘ and even though the defendant
did not then and does not now reside in Virginia, he was
still subject to the personal jurisdiction of its courts
through its long arm statutes because of his allegedly tor-
tious conduct within the state."
'* Code of Virginia § 8.01-243 in pertinent part:
‘‘A. Unless otherwise provided by statute, every action for
personal injuries, whatever the theory of recovery, except
as provided in B hereof, shall be brought within two years
next after the cause of action shall have accrued.
* * #”
'® Code of Virginia § 8.01-328.1 in pertinent part:
‘‘A. A court may exercise personal jurisdiction over a per-
son, who acts directly or by an agent, as to a cause of action
arising from the person’s
* + + *+ * 8
‘3. Causing tortious injury by an act or omission in this
State;
*- * *’’
27a
The legislature of Virginia has removed some of the
complexities of determining when the statutes of limita-
tion of that state start to run by enactment of the Code of
Virginia, § 8.01-230:
“In every action for which a limitation period is
prescribed, the cause of action shall be deemed to
accrue and the prescribed limitation period shall begin
to run from the date the injury is sustained in the
case of injury to the person, when the breach of con-
tract or duty occurs in the case of damage to property
and not when the resulting damage is discovered, ex-
cept where the relief sought is solely equitable or
where otherwise provided under § 8.01-233, subsec-
Code of Virginia § 8.01-329:
“Service of process or notice.—A. When the exercise of per-
sonal jurisdiction is authorized by this chapter, service of
process or notice may be made in the same manner as is
provided for in chapter 8 (§ 8.01-285 et seq.) of this title in
any other case in which personal jurisdiction is exercised
over such a nonresident party, or process or notice may be
served on any agent of such person in the county or city in
this State in which he resides or on the Secretary of the
Commonwealth of Virginia, thereinafter referred to in this
section as the ‘Secretary,’ who, for this purpose, shall be
deemed to be the statutory agent of such person.
‘‘B. Service of such process or notice on the Secretary shall
be made by leaving a copy of the process or notice, together
with the fee prescribed in § 14.1-103 in the hands of the
Secretary or in his office in the city of Richmond, Virginia,
and such service shall be sufficient upon the nonresident,
provided that notice of such service and a copy of the pro-
cess or notice are forthwith sent by registered or certified
mail, with delivery receipt requested, by the Secretary to
the defendant or defendants at such defendant’s or defend-
ants’ last known post-office address, and an affidavit of
compliance herewith by the Secretary or someone designat-
ed by him for that purpose and having knowledge of such
compliance, shall be forthwith field with the papers in the
action.”
28a
tion C of $§ 8.01-245, 8.01-249, 8.01-250 or other
statute.’ (Other sections referred to have no applica-
tion.)
That provision appears to codify the traditional rule of
Virginia case law. Hawks v. DeHart, 1966, 206 Va. 810,
146 S.E.2d 187. In Hawks The court made it clear that:
‘‘We are committed in Virginia to the rule that in
personal injury actions the limitation on the right to
sue begins to run when the wrong is done and not
when the plaintiff discovers that he has been dam-
aged.”’
The court then went on to cite Street v. Consumers Mining
Corp., supra, footnote 6, a disease case bearing some re-
semblance to the case before us now. The plaintiff there
breathed silica dust and contracted the disease of silicosis.
His last exposure to the dust was 1936. It was there held
that the statute began to run upon the date of his last
exposure.
There is no testimony or evidence in this case as to exact
time the plaintiff was infected by exposure to defendant's
disease. We shall assume for the moment that she was
infected instantly upon the sexual intercourse taking place
in the Virginia parking lot. If that was the case, a strict
reading of the Virginia statute, § 8.01-230, supra, indicates
that the cause of action arose in Virginia on April 4-5,
1970. On the other hand, if we follow the holding of the
Virginia court’s Street case, supra, that the statute begins
to run upon the date of last exposure, then the cause of
action arose in New York City, New York, on April 22,
1970 where the last act of sexual intercourse took place.
In the first instance, the plaintiff is barred in Virginia by
its two year statute of limitations. In the other no cause
of action arose in Virginia.
nn ee
29a
Virginia has a tolling statute, Code of Virginia, § 8.01-
229, in pertinent part:
“D. When an action has been commenced and service
of process upon a defendant shall be prevented by
such defendant
1. Departing from the Commonwealth; or
2. Absconding or concealing himself; or
3. Filing a petition in bankruptcy or filing a petition
for an extension or arrangement under the United
States Bankruptcy Act; or
4. Using any other direct or indirect means to ob-
struct the prosecution of such cause of action;
then the time that such prevention may have contin-
ued shall not be counted as any part of the period
within which the action must be brought.”
The Supreme Court of Virginia has held that the limitation
period is not tolled if process can be served despite the
defendant’s absence as by service of process under Virgin-
ia’s ‘‘long arm” statute, footnote 15, because absence from
the state does not obstruct the prosecution of a plaintiff's
claim. Bergman v. Turpin, 1965, 206 Va. 539, 145 S.E.2d
135. This court has heretofore cited this case, we also
holding that the tolling statute is not applicable where
there is another method of service available to the plaintiff.
Tarter v. Insco, Wyo.1976, 550 P.2d 905.
[18-22] Even if it could be considered that a cause of
action arose in Pennsylvania,"* its statute of limitations
‘In Pennsylvania a right of action accrues only when injury,
as defined by the courts of that state, is sustained by the plain-
tiff, not when the causes are set in motion which ultimately
produce injury as a consequence. Ayers v. Morgan, 1959, 397
Pa. 282, 154 A.2d 788; Foley v. Pittsburg-Des Moines Co., 1949,
363 Pa. 1, 68 A.2d 517, supra. Its two year period begins to run
when the injury is done; an injury is considered done ‘“‘when the
30a
bars any action there. The Pennsylvania statute of limi-
tations, 12 P.S. § 34,"’ provides that a personal injury
action “‘must be brought within two years from the time
when the injury was done and not afterwards.’’ The tolling
statute of Pennsylvania, 12 P.S. § 40, applies only'to res-
idents:
“In all civil suits and actions in which the cause of
action shall have arisen within this state the defend-
ant or defendants in such suit or action, who shall
have become non-resident of the state after said cause
of action shall have arisen, shall not have the benefit
of any statute of this state for the limitations of ac-
tions during the period of such residence without the
state.”
act heralding a possible tort inflicts a damage which is physically
objective and ascertainable." Ayers v. Morgan, supra. A reading
of the cited authorities discloses the rule to be tantamount to the
rule of discovery, i.e., a cause of action arises upon discovery of
the injury (physically objective and ascertainable). The final sig-
nificant event then was discovery of the injury—presence of the
disease, gonorrhea-in Washington, D.C. after examination and
testing April 22, 1970. No cause arose in Pennsylvania because
no injury, as defined by the Pennsylvania court, occurred nor
was discovered in that state, — the — et le aga
ant's implanting of gonococci— place in Pennsylvania.
pon ye conflicts was decided in Mack Trucks, Inc. v.
Bendix-Westinghouse Automotive Air Brake Company, 3rd Cir.
1966, 372 F.2d 18, where it was held that the Pennsylvania
“borrowing” statute, 12 P.S., § 40, must be applied because the
injury occurred in Florida arising out of a cause generated in
Pennsylvania; so, therefore, Florida was where the action arose
and the latter state's limitation statutes barred the action.
"12 P.S. § 34:
“Every suit hereafter brought to recovery damages for
injury wrongfully done to the person, in case where the
inj th, must be brought within two
——
ae ee
3la
It affects all defendants who become nonresidents after
the cause shall have arisen—“ ‘meaning, necessarily, de-
fendants: who had a residence at the time the cause of
action arose, else they could not “become” non-
residents.’ '’ Hunter v. Bremer, 1917, 256 Pa. 257, 100 A.
809, quoting from Bates v. Cullum, 1896, 177 Pa. 633, 637,
35 A. 861, 862, 34 L.R.A. 440, 55 St.Rep. 753. Since de-
fendant was a resident of the State of Wyoming at the
time of all the occurrences herein, the Pennsylvania statute
has run. The presence of plaintiff and defendant in Penn-
sylvania was only transient.
[23-26] We must also conclude that no cause of action
arose in lowa. lowa follows the Restatement, Conflict of
Laws, § 377 rule that: “The place of wrong is in the state
where the last event necessary to make an actor liable for
an alleged tort takes place.’’ Andersen v. National Presto
Industries, Inc., 1965, 257 lowa 911, 135 N.W.2d 639. It
is interesting to note that in Andersen, to support its
position that parts of a tort may arise in different places,
it cites Price v. State Highway Commission, 1946, 62 Wyo.
385, 167 P.2d 309, 312, where it is said:
“* * * Generally speaking and without undertaking
in the least an all inclusive definition, a tort has a
meaning somewhat similar to wrong and is an unlaw-
ful act injurious to another independent of contract.”
Of course, reference is made to the fact that a tort is in at
least two parts: (1) an act commitied resulting in (2) dam-
age. Iowa further follows the general rule that a cause of
action accrues when the injured party has a right to insti-
tute and maintain a suit; a cause of action based on neg-
ligence does not accrue until the plaintiff has in fact dis-
covered that he has suffered injury. Chrischilles v. Gris-
wold, 1967, 260 lowe 453, 150 N.W.2d 94. Since lowa
follows the discovery rule, as noted, it would appear that
it was in Washington, D.C. that the cause of action accrued
as far as that state is concerned because it was in the
32a
District of Columbia that plaintiff discovered that she had
in fact suffered injury by virtue of the negligent conduct
of the defendant.
[27-29] Nebraska also follows the majority rule that a
cause of action accrues when injury actually occurs and
there is a basis for a cause of action. Imaha Paper Stock
Company, Inc. v. Martin K. Eby Construction Company,
Inc., 1975, 193 Neb. 848, 230 N.W.2d 87. A cause of action
accrues and the statute of limitations begins to run when
the aggrieved party has the right to institute and maintain
a suit. Weiss v. Weiss, 1966, 179 Neb. 714, 140 N.W.2d
15. That rule is more fully said in Bend v. Mesh, 1945,
145 Neb. 780, 18 N.W.2d 106, 110:
“The accrual of a cause of action means the right to
maintain and institute a suit, and whenever one per-
son may sue another, a cause of action has accrued
and the statute begins to run, but not until that time.
So whether at law or in equity, the cause of action
arises when, and only when, the aggrieved party has
a right to apply to the proper tribunal for relief.’’
Under the law of Nebraska, no action arose there.
There are only three rules that can be applied as to when
a cause of action accrues in the case of continuing negli-
gence. Applying those rules to Nebraska, in this case there
is no proof as to just when plaintiff was actually infected—
the only medically certain inference is that she had gon-
orrhea in New York, on April 21, 1970. The gonococci may
have taken hold at once following the first exposure or the
vesults delayed until some later time. We cannot guess and
will n.t try to. Rules for such situations have been devised
and we have mentioned or discussed them all. Applying
any one precludes the plaintiff one way or another.
[30] If we follow the New York rule, of injury being
concurrent with the tortious act of invading the plaintiff's
body with a dangerous substance, the Nebraska statute of
— ee SS a
33a
limitations bars plaintiff. The exposure in Nebraska took
place during the night of April 10-11, 1970. Nebraska has
a four year statute of limitations for personal injury ac-
tions, § 25-207, Revised Statutes of Nebraska, 1943, Reis-
sue of 1975, supplementing § 25-201.'* It likewise has a
tolling statute, § 25-214, Revised Statutes of Nebraska
1943, Reissue of 1975, covering absent persons.'* Nebraska
has a long arm statute, § 25-536, Revised Statutes of
Nebraska, 1943, Reissue of 1975, enacted in 1967, in per-
tinent part:
(1) A court may exercise personal jurisdiction over
a person, who acts directly or by an agent, as to a
cause of action arising from the person's:
'* Section 25-207, R.R.S. 1943, 1975:
“The following actions can only be brought within four
years: (1) An action for trespass upon real property; (2) an
action for taking, detaining or injuring personal property,
including actions for the specific recovery of personal prop-
erty; (3) an action for an injury to the rights of the plaintiff,
not arising on contract, and not hereinafter enumerated; and
(4) an action for retief on the ground of fraud, but the cause
of action in such case shall not be deemed to have accrued
until the discovery of the fraud, except as provided in sec-
tions 30-2206 and 76-288 to 76-298.”’
Section 25-201, R.R.S.1943, 1975: ‘‘Civil actions can only be
commenced within the time prescribed in this chapter, after
the cause of action shall have accrued.”
'* Section 25-214, R.R.S.1943, 1975:
“If, when a cause of action accrues against a person, he is
out of the state, or shall have absconded or concealed him-
self, the period limited for the commencement of the action
shall not begin to run until he comes into the state, or while
he is absconded or concealed; and if, after the cause of action
accrues, he departs from the state, or absconds or conceals
himself, the time of his absence or concealment shall not be
computed as any part of the period within which the action
must be brought.”
34a
‘‘(c) Causing tortious injury by an act or omission
in this state;
* * *’’
While we have been unable to find a Nebraska case on
the subject, we would expect it to follow the general rule
that the tolling statute is not applicable where a long arm
statute makes a substituted method of personal service
available to the plaintiff. Tarter v. Insco, supra, 550 P.2d
905, at footnote 5 of that case. Plaintiff's action was there-
fore barred in Nebraska under the New York rule, on April
12, 1970, over four years prior to filing the instant action.
If the Wyoming discovery rule, footnote 8, is followed,
then the cause of action as to Nebraska arose in Washing-
ton, D.C. where the presence of gonorrhea in plaintiff was
confirmed. A federal court in a diversity action believes
that Nebraska would follow the discovery rule in a beryi-
lium case where plaintiff was exposed over a long period,
when the negligence arose in Massachusetts and the injury
occurred in Nebraska. Sylvania Electric Products v. Bar-
ker, 1st Cir. 1955, 228 F.2d 842, cert, den. 350 U.S. 988,
76 S.Ct. 475, 100 L.Ed. 854. If we follow the last exposure
rule which we have discussed, then the cause of action, as
far as Nebraska is concerned, arose in New York where the
last act of sexual intercourse took place.
We foreclose Washington, D.C. as the place where a
cause of action arose because no tortious act was commit-
ted there, nor was that a place where the plaintiff was
injured by the implanting of infection by the defendant. It
is true that Washington, D.C. was the place where plaintiff
incurred medical expense for diagnosis and treatment of
the injury inflicted upon her but has no controlling force
as to where the cause arose. While she had money damages
in the District of Columbia, her physical injury of contract-
ing gonorrhea took place elsewhere. The law of the District
in that regard is expressed by its courts in an analogous
way where it has dealthwith its long arm statute. A good
|
oo Ney
:
:
35a
example is Leaks v. Ex-Lax, Inc., USDC DC 1976, 424
F.Supp. 413. The District’s long arm statute” provides
that a court of the District may exercise personal jurisdic-
tion in some cases on a claim of relief for causing tortious
injury in the District by an act or omission outside the
jurisdiction. The plaintiff was in Phoenix, Arizona where
she purchased a box of Ex-Lax pills and took two. She
shortly suffered a severe reaction and went to a Phoenix
hospital for treatment and also saw a physician who pre-
scribed treatment. A month later she returned to the Dis-
trict where she claimed she continued to suffer on a con-
tinuing basis and, because of incapacity, lost income. The
court held that Arizona being the place when the injury
arose, any damage incurred in the District thereafter was
only one measure of her total damages. We thus see the
district court of the District of Columbia refusing to take
jurisdiction in an action where the injuries arose elsewhere
and in refusing to divide damages to acquire jurisdiiction.
The principles apply comparably to the situation before
us. See also Aiken v. Lustine Chevrolet, Inc.. USDC DC
1975, 392 F.Supp. 883, where the tort was committed in
Maryland but the damage arose in the District.
We therefore must conclude after extensive research
that by virtue of Wyoming’s borrowing statute, the filing
of plaintiff's complaint on April 19, 1974 was untimely.
* Section 13-423, D.C.Code 1973 in pertinent part:
(a) A District of Columbia court may exercise personal
jurisdiction over a person, who acts directly or by an agent,
as to a claim for relief arising from the person’s—
* ¢+ + + * &@
‘‘(4) causing tortious injury in the District of Columbia by
an act or omission outside the District of Columbia if he
regularly does or solicits business, engages in any other
persistent course of conduct, or derives substantial revenue
from goods used or consumed, or services rendered, in the
District of Columbia;
36a
Reversed with directions to vacate the judgment for
plaintiff and enter judgment for the defendant.
THOMAS, Justice, concurring.
I concur in the result in this case that was reached by
the majority of the Court. I would, however, reach that
result in a different manner. In my view this action was
barred by the three-year statute of limitations of the Dis-
trict of Columbia (§ 12-301, D.C.Cede Ann. (1973)), which
is the place where the cause of action arose and to which
we are directed by § 1-3-117, W.S.1977. The District of
Columbia, like our state, follows a discovery rule with re-
spect to the accrual of an action in tort. Grigsby v. Sterling
Drug, Inc., 428 F.Supp. 242 (1975); affirmed, 177
U.S.App.D.C. 270, 543 F.2d 417 (1976). In the Grigsby
case the court concluded that the statute of limitations
began to run when the plaintiff knew, or through the ex-
ercise of due diligence could have known, that she had a
claim that her injuries were caused by a defect in the
defendant’s product. That knowledge was acquired upon
her examination by a physician in October even though in
Grigsby's instance she had symptoms manifesting injury
in August. It was not until the examination by her phy-
sician in Washington, D.C., that Margaret Housen knew
of her injury, and prior to that time all of the elements of
the cause of action in tort were not present. No injury to
the plaintiff could be demonstrated prior to that exami-
nation, and in any other jurisdiction we must speculate as
to the occurrence of an injury.
I am impressed with the reference in the majority opin-
ion and the dissenting opinion to A.L.I. Restatement, Con-
flict of Laws, § 377 (1934), which sets forth the rule as
follows:
““$ 377. The Place of Wrong.
“The place of wrong is in the state where the last
event necessary to make an actor liable for an alleged
tort takes place.”’
Po antag tet te My Latin tema crths MBn 5 Re SRO Ni 8 Seo
37a
As I understand the thrust of the majority opinion that
place is determined to be the state of New York. Included
within § 377 is a section entitled ‘Summary of Rules in
Important Situations Determining Where a Tort is Com-
mitted.’’, and included within that section is a rule set
forth as follows:
‘2. When a person causes another voluntarily to take
a deleterious substance which takes effect within the
body, the place of wrong is where the deleterious sub-
stance takes effect and not where it is administered.
“Tllustration:
“2. A, in state X, mails to B in state Y a
package containing poisoned candy. B eats the
candy in state Y and gets on a train to go to
state W. After the train has passed into state
Z, he becomes ill as a result of the poison and
eventually dies from the poison in state W.
The place of wrong is state Z.”’
This illustration seems peculiarly applicable to the fac-
tual situation herein in which the infection could have been
transmitted in any one of a number of states. The plaintiff
did not manifest any symptoms of the disease, and the
illness was identified in Washington, D.C., upon physical
examination. I have no quarrel with the general discussion
of the law relative to statutes of limitations set forth in
the majority opinion, but those concepts are designed to
reach a degree of certainty in the law, albeit arbitrarily.
Their application in this instance identifies the District of
Columbia as the place of the wrong.
The application of the District of Columbia statute is
consistent with views this Court previously has expressed
in Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954); Brown v.
Riner, Wyo., 500 P.2d 524 (1972); and Cantonwine v. Fehl-
ing, Wyo., 582 P.2d 592. Even if one should turn to the
more modern “substantial relationships’ test set forth in
38a
A.L.I. Restatement (Second), Conflict of Laws, $§ 145, 146
(1971), the result would be the same. According to § 146
of that work the law of ““* * * the state where the injury
occurred determines the rights and liabilities of the parties,
unless, with respect to the particular issue, some other
state has a more significant relationship under the princi-
ples stated in $ 6 to the occurrence and the parties
* * *” Section 145 lists the contacts to be taken into
account in applying the principles of § 6 to a tort situation,
and none of them result in any other state having a more
significant relationship to the occurrence and these parties
than the District of Columbia. Some of these factors have
no application at all under this set of circumstances.
In this particular instance since the selection of the
District of Columbia avoids any speculation with respect
to the facts, and because of the suggestions in the several
treatises, including those cited and discussed in the ma-
jority and dissenting opinions, I would select as the place
of injury the District of Columbia. Applying its statute of
limitations which begins to run upon discovery of the ill-
ness, I would hold that the action was barred by the ap-
plicable statute of limitations.
McCLINTOCK, Justice, dissenting.
In brief outline of the basis of my dissent, I agree with
the majority that under the common law, limitations of
actions are governed by the law of the forum. Section 1-
3-117, W.S.1977, the so-called borrowing statute, changes
that rule only to the extent that we are required to apply
the limitation of another state if it is determined that the
“cause of action arose” in that other state. The majority
recognize that both a wrongful act and a resulting injury
are necessary to effect an actionable tort, and that the
“law of the place where the plaintiff sustains injury to her
person controls.”’ 589 P.2d at p. 341. The record does not
disclose and neither the jury nor this court could find the
specific state where either the wrongful act took place or
tu ee eal
il il Set Aa cl ct lle
39a
the plaintiff sustained injury to her person. An essential
prerequisite to application of our borrowing statute, name-
ly, that there be a state from which to borrow, is then
lacking. However, it might be logically consistent with §
1-3-117 to hold the action barred if, by the law of all the
states where the action might possibly have arisen, the
action is barred. That is not the situation here, since Ne-
braska and Wyoming, both of which are states where the
injury could have taken place, have four-year statutes and
both are discovery states. My essential disagreement with
both the majority and concurring opinions is with their
concept that discovery of the wrongful act and resulting
injury is an essential condition to the existence of an ac-
tionable tort. I would hold that discovery is of importance
only in determining when a statute of limitations begins
to run. I would then hold that defendant, who bears the
burden of proving facts bringing the case within an appli-
cable statute of limitations, has failed in that burden. I
would therefore not dismiss the action.
The jury has specially found that defendant was infected
with gonorrhea during the period April 4 to 21, 1970, which
was the period during which the parties had continuing
sexual relations. The first element of an actionable tort
then occurred when this infected person, knowingly or with
careless disregard as to his condition, had sexual relations
with plaintiff without taking possible and proper precau-
tions to prevent transmission of the disease. But only if
this act resulted in communication of the disease to his
partner would there be an actionable wrong. Consistently
with the testimony of Dr. Beletti that ‘‘one may have the
disease and not necessarily transmit it to another,’’' nei-
' It is said in the VD Book by Chiappa and Forish, in question
and answer form, that ‘‘a man’s chances of catching gonorrhea,
when exposed to someone who has it are from one in five to one
in twenty for each exposure. A woman's chances probably are
closer to one in two."’ I do not fnd in the record anything con-
cerning sanitary precautions that might have been taken by
either of the parties.
40a
ther the jury nor this court could or can properly find that
on a specific date and at a specific place within a period of
18 days and an area of five states,’ the infection was trans-
mitted to plaintiff. Nor could the jury or this court, con-
sistently with any evidence in the cause, find that on a
specific date within that 18-day period and at a specific
place within an area of 11 states’ the disease incubated
and developed to a point of injury to plaintiff.
On the basis that chances of infection are not 100% and
that the incubation period for the disease is variable,’ it is
possible but not very probable that transmission, incuba-
tion and injury occurred in any one of the five contact
states; it is similarly possible and perhaps more probable
that transmission occurred in one state and this took ef-
fect, that is, injury occurred, in another. Consistently with
the proper holding of the majority that it is the law of the
state of injury’ and not of the wrongful act that determines
* Sexual acts occurred in Virginia, New York, Pennsylvania,
Iowa, Nebraska, and again in New York.
* The parties first had sexual contact in Virginia on the night
of April 4-5, and had their last contact in New York on the night
of April 21-22. That is the 18-day period to which I refer.
‘In the book, Venereal Disease, 3d Ed., by King and Nicol, it
is said that the incubation period may vary from two to ten days,
but that in most cases it is five days or less. Control of Com-
municable Diseases in Men, 11th Ed., gives the incubation period
as ‘3 to 4 days, sometimes 9 days or longer.’’ In Ch. 19, Practice
of Medicine, Vol. III, it is said that ‘the incubation period may
be prolonged, but approximately 95% of patients will develop
symptoms within 2 weeks.”
*I would consider the case at bar a perfect example of the
principle set forth in § 377, Restatement of Conflict of Laws,
mentioned in Justice Thomas’s concurring opinion that when a
person causes another “ 'to take a deleteriouss substance which
takes effect within the body, the place of wrong is where the
deleterious substance takes effect and not where it is adminis-
tered.’ ’’ The illustration of a person sending poison to another
person in another state, who there takes it, then in the course of
a trip becomes ill in a second state and dies in a third, is quite
ee ee Se
so os
4la
whether a tort has been committed, it is possible that the
tort could have become complete in any one of 11 states in
which the plaintiff, in the company of the defendant, or
separately, found herself during the 18-day sojourn be-
tween the first contact and confirmation of the existence
of the disease in plaintiff in Washington on April 22.
I think it fairly obvious that our § 1-3-117 was not
adopted with this type of tort in mind and it is true that
in most cases the gtate where the action arose is not too
difficult to determine. In products liability cases, for ex-
ample, where the negligence occurs in one state and the
product is purchased and used in another state, with injury
to the user, there is a clear demarcation. But in this case,
which I think we all agree is one of first impression in its
interstate nature, the place of injury is obsc: e and all we
know is that at some time and place the plaintiff was
injured through negligent act of the defendant. This has
been found by the jury. I do not think that we can properly
conclude that our legislature has said that if the action
would be barred in one of a number of possible states, it
is likewise barred in this state. The statute of no one state
may be adopted unless it is clearly established that it was
the place of injury.
Although it is the law of the place of injury that governs,
the majority briefly and I think arbitrarily dismiss Wyo-
ming as a possible place of wrong because no sexual act
took place therein. If transmission of the disease through
sexual intercourse is not certain and if there is an incuba-
tion period, then it is possible that transmission and plant-
ing of the infection occurred in one state and took effect in
pertinent to our problem. Here the poison is administered in
some state that we do not know, and takes effect in either that
state or another that we do not know. Nevertheless, the place of
wrong is where the poison takes effect within the body. In our
case, the poison could have been administered in Nebraska and
taken effect in Wyoming.
42a
another. For example, it is entirely possible that this trans-
mission occurred in Nebraska and took effect in Wyoming
so that our state is not only the forum state of the action
but is also the place of wrong. Although sexual contact
occurred in Nebraska, the disease may have been trans-
mitted through a previous contact, taking effect in Ne-
braska, so that was the state of injury. If the actionable
tort was committed in Nebraska, conceded by the majority
to be a discovery state, the statute would not start to run
until the wrong was discovered. But that state is excluded
by the majority only on the basis that discovery was made
in either New York City or Washington, D. C., and discov-
ery is said to be an essential element to the cause of action.
I would submit that the fact of discovery is not an
essential ingredient to the existence of an actionable wrong
and that the position of the majority (more clearly enun-
ciated by Justice Thomas in his concurring opinion) is
sustained neither by authority nor reason. Obviously no
suit can be brought without knowledge of facts which
constitute the basis of the claim, but as said in 1 Cooley
on Torts, 4th Ed., § 46, p. 87, “it is the conjunction of
damage and wrong that creates a tort.’’ As said by the
Supreme Court of Washington in Highline School District
No. 401, King County v. Port of Seattle, 87 Wash.2d 6,
548 P.2d 1085, 1090 (1976), “‘[aJcause of action accrues on
the occurrence of the last element essential to the action.”
In the same vein is Boulder City v. Miles, 85 Nev. 46, 449
P.2d 1003, 1005 (1969): “‘A cause of action accrues only
when the forces wrongfully put in motion produce an in-
jury."’ Nowhere in these authorities or any that I have
been able to find is it said that knowledge or discovery is
an essential element of the actionable tort. The majority
therefore assume a rule that has no judicial backing. While
I cannot cite direct authority for my position, I believe it
is consistent with principles set forth in the following ci-
tations.
-
:
43a
In Cantonwine v. Fehling, Wyo., 582 P.2d 592, 596
(1978), we quoted with apparent approval this statement
from the early case of Biller v. Boswell, 9 Wyo. 57, 72, 59
P. 798, 803 (1899), reh. denied 9 Wyo. 57, 80, 61 P. 867:
“"... A “cause of action’’ is defined as matter for
which an action may be brought. It is said to accrue
to any person when that person first comes to a right
to bring an action. * * * Again, when a wrong has
been committed, or a breach of duty has occurred, the
cause of action has accrued, although the claimant
may be ignorant ofit.* * *’’’ (Emphasis added)
I therefore conclude that it is only in the application of the
statute of limitations to the remedy to be sought for an
accrued cause of action that the question of discovery
becomes of importance. It is only in connection with the
question of limitations that we find judicial statements
that the action has accrued upon “discovery’’ of the wrong
or injury. It appears that this is a developing concept. In
2 Wood on Limitations, 4th Ed. 1916, § 276c(1), pp. 1408-
1410, we find this broad statement:
‘Mere ignorance of the existence of a cause of action
does not prevent the running of the statute of limi-
tations unless there has been fraudulent concealment
on the part of those invoking the benefit of the stat-
ute.”
Examination of the whole section discloses no applica-
tion of the discovery principle except in fraud cases. But
this old rule has been changed in many states, including
Wyoming, which as conceded by the majority has turned
to the discovery rule. But this rule is of significance only
when considering the question of when the statute of lim-
itations begins to run. This quotation from Gazija v. Ni-
cholas Jerns Company, 86 Wash.2d 215, 543 P.2d 338, 341
(1975) is particularly pertinent:
‘While in many instances damage occurs and the ac-
tion accrues immediately upon the occurrence of the
44a
wrongful act, this is not always true. In circumstances
where some harm is sustained, but the plaintiff is
unaware of it, a literal application of the statute of
limitations may result in grave injustice. Courts have
avoided this consequence of older cases like Shaw" by
adopting the fictions of continuing negligence, fraud-
ulent concealment or constructive fraud. There is now
a wave of modern decisions which abandon these fic-
tions and these simply hold that the statute will no
longer be construed as intended to run until the plain-
tiff has in fact discovered that he has suffered injury
or by the exercise of reasonable diligence should have
discovered it. [Citations omitted]
“Bearing in mind that we are construing a limitations
statute and not just a definition of a cause of action,
the word ‘accrued’ should be construed in a manner
consistent with a prima facie purpose to compel the
exercise of a right within a reasonable time without
doing an unavoidable injustice.”’ (Emphasis added)
When the majority include discovery as an element in
the accrual, chat is the commission, of a completed tort,
they ignore the whole manner in which the concept of
discovery has developed. Schwartz v. Heyden Newport
Chemical Corporation, 12 N.Y.2d 212, 237 N.Y.S.2d 714,
188 N.E.2d 142, 4 A.L.R.3d 814 (1963), cited by the ma-
jority, as well as the earlier case of Schmidt v. Merchants
Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R.
450 (1936) are based on the proposition that “‘[t]he wrong
is done, the right violated, and the cause of action complete
when the invasion takes place,”’ 237 N.Y.S.2d at 717, 188
N.E.2d at 144. This being the case, the statute of limita-
tions was read literally and it was said to begin to run
from the time that the injury occurred, whether known or
not. This was the established rule at the time Wood wrote
*Shaw v. Rogers and Rogers, 117 Wash. 161, 200 P. 1090
(1921).
45a
his treatise in 1916. The development of the discovery rule
was designed to get away from this harsh result and rep-
resented a different approech, as I have quoted from Ga-
zija, supra, from the resort of some courts to such fictions
as continuing negligence, fraudulent concealment or con-
structive fraud. As the whole matter is summed up in
Prosser on Torts, 4th Ed., § 30, p. 144:
“* © * Quite recently there have been a wave of
decisions meeting the issue head-on, and holding that
the statute will no longer be construed as intended to
run until the plaintiff has in fact discovered that he
has suffered injury, or by the exercise of reasonable
diligence should have discovered it.”’
Prosser does not say and the cases applying the discovery
rule do not say that previous rules of tort law are amended
to include discovery as an element of the tort. The deci-
sions are strictly confined to a construction and applica-
tion of the limitations statute.
I concede that I have referred to possibilities. If those
possibilities. If those possibilities concerned whether de-
fendant had committed an actionable tort against plaintiff,
it might well be said that plaintiff did not sustain the
burden of proof resting upon her. However, defendant has
not contended in his brief or upon oral argument that the
evidence was insufficient to support the verdict of negli-
gence rendered by the jury. The bar of the statute of
limitations is one sought to be raised by the defendant in
avoidance of established liability. In such case, ‘‘[tJhe party
pleading the statute of limitations has the burden of prov-
ing that the action is barred.’’ Garland v. True Temper
Corporation, 354 F.Supp. 328, 330 (D.C.W.Va.1973). See
also, Ray v. Oklahoma Furniture Mfg. Co., 170 Okl. 414,
40 P.2d 663 (1935); Savannah Bank & Trust Co. v. Meld-
rim, 195 Ga. 765, 25 S.E.2d 567 (1943); Wahl v. Cunning-
ham, 320 Mo. 57, 6 S.W.2d 576 (1928). While indicating
46a
that the authorities are not in complete agreement, it is
said in 54 C.J.S. Limitations of Actions § 386, p. 523 that
“* * * in a majority of jurisdictions it is a rule that
the party pleading the statute has the burden of proof,
that is, the burden of proving that the cause of action
accrued more than the statutory time before the com-
mencement of the action.”
This court does not seem to have passed specifically on
where the burden of proof lies in such cases, but a good
many years ago it said that the defense of limitations
“Becomes available on demurrer only when the petition
shows affirmatively that the statutory period has elapsed
before the action was commenced.’ Marks v. Board of
Com'rs of Uinta County, 11 Wyo. 488, 493, 72 P. 894
(1903). Rule 8(c), W.R.C.P. treats the statute as an affirm-
ative defense. In First Nat. Bank of Morrill v. Ford, 30
Wyo. 110, 121, 216 P. 691, 31 A.L.R. 1441 (1923), it is said
that the burden of proof is on the defendant “‘as to all
affirmative defenses, whether they relate to the whole case
or only to certain issues in the case.”
Defendant does not plead the statute of limitations of
any particular state, and claims only that the action is
barred by the provisions of our borrowing satute, § 1-3-
117, W.S.1977. In this court he relies on the District of
Columbia three-year statute. I would hold that statute
inapplicable on the basis already discussed, and since he
has shown no other statute which governs and has not
shown that the..ctatutes of all possible places of wrong
have run, he has failed in his burden. From this, it follows
that the action should not be dismissed.
While other errors have been assigned by defendant,
they have not been discussed by the majority and there is
no point in my considering them. However, in order to
indicate that this dissent has not been just an idle joust
with the statute of limitations issue, I would add that
while I find some merit in some of the propositions ad-
a areeees
47a
vanced for reversal, I find nothing which would result in
direction of the entry of judgment for the defendant.
49a
APPENDIX B
SUPREME COURT OF WYOMING.
No. 4811
“Pony” DUKE,
Appellant (Defendant below),
Vv.
MARGARET HO?! SEN,
Appellee (Plaintiff below).
March 2, 1979.
Order Denying Rehearing
Before RAPER, C. J. McCLINTOCK and THOMAS,
JJ., GUTHRIE, J., Retired and ARMSTRONG, D. J.,
Retired. ROONEY, J., did not participate.
RAPER, Chief Justice.
‘After full consideration, it is, by a majority of the Court
so deciding,
ORDERED that the plaintiff-appellee’s Petition for Re
hearing be and is denied. MCCLINTOCK, Justice, dissent-
ing.
The majority opinion has been a confusing and difficult
one for me to read because of contradictory statements,'
‘To me, a glaring instance of contradiction is found by com-
parison of the satements at pages 349 and 351 of the Reporter
(589 P.2d) with the finding and holding at page 345. The first
statements mentioned are both to the effect that there is no
testimony or proof as to just when the plaintiff was infected,
with the further remark in the latter that the gonococci ‘“‘may
have taken hold at once following the first exposure or the results
delayed until some later time. We cannot guess and will not try
to.’’ At page 345 the majority say: ‘“‘We find and hold that a
cause of action arose in the state of New York on April 8, 1970
and April 21, 1970.’’ These are dates on which the parties had
sexual relations in that state. The significance of these contra-
50a
leaving me without a clear understanding as to just what
is the holding of the court. I share the concern expressed
in the petition for rehearing that the majority ignore two
well-established rules of this court: that it will grant all
favorable inferences to the appellee,’ and that it is not the
trier of the facts.’ I agree with counsel that not only has
the majority made such findings but that they are not
supported by and in some cases in conflict with the uncon-
tradicted evidence.‘ These, to me, are sufficient reasons for
granting a rehearing but my chief concern and principal
reason for dissenting from the denial of rehearing is my
belief that the principal and concurring opinion both inject
a new and improper element into the creation of an action-
able tort. That new element is discovery of the damage
resulting from the wrongful act.
Justice Thomas clearly and unequivocally states that
discovery is such a necessary element. The principal opin-
ion first states that the elements of a tort are a wrongful
act plus injury, but the states of Pennsylvania, lowa and
Nebraska (all three being states where sexual acts took
place and the disease could have been implanted and de-
velop to the point of injury) are excluded on the basis that
in those states discovery is necessary before any cause of
dictions is emphasized by the earlier statement in the opinion at
page 344 where after discussing the applicability of a foreign
statute of limitations, it is said, “It thus becomes of acute im-
portance in the situation at bar to specifically determine for
limitation of action purposes, where and when plaintiff’s cause
of action arose.’’ In my opinion the majority never succeed in
this endeavor.
? Zitterkopf v. Roussalis, 546 P.2d 436, 437 (Wyo.1976); Jelly
v. Dabney, 581 P.2d 622 (Wyo.1978).
* Neal v. Wailes, 346 P.2d 132, 134 (Wyo.1959).
‘I particularly have in mind the testimony of Dr. Belletti,
mentioned in my dissent, that transmission of the disease does
not necessariiy result from intercourse. See also the notes re-
garding chances of infection and time of incubation of the dis-
ease.
5la
action arises.’ In my view, under the undenied facts of this
case, it is impossible for this court to exclude from consid-
eration the state of Nebraska and its applicable four-year
statute of limitations, except on the basis that discovery
is an essential element of the tort. There was no discovery
in Nebraska; therefore no action arose in that state.
I shall not reiterate the argument advanced in my dis-
sent, that discovery is not an element of the tort itself but,
as counsel for plaintiff express it, ‘starts the clock but
does not determine the state in which the clock starts
ticking.’ I may be wrong in this view, but the principal
opinion does not even discuss it. I think that the matter
should be thorvughly discussed before we make discovery
an element of the tort itself.
While I adhere to the principle in Elmer v. State, 466
P.2d 375, 376 (Wyo.1970) that rehearing will not be grant-
ed ‘unless there is a reasonable probability that the court
may have arrived at an erroneous conclusion,”’ I am of the
opinion that the majority have done just that.* I would
therefore grant a complete rehearing.
* As to Pennsylvania and Iowa, I concede my point is unim-
portant because, even treating the limitation as beginning to run
upon discovery, the action would be barred by their shorter
statutes. It is clear, however, that unless discovery is considered
a necessary element of the tort so that no wrong was committed
in Nebraska, the action was brought as to that state within its
applicable statute.
* For a further discussion of my views concerning this rule see
_ — of rehearing in Ash v. State, 560 P.2d 369, 370 (Wyo.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.