Appeal from the Circuit Court of Lake County; the Hon. PHILIP
W. YAGER, Judge, presiding. Order dismissing plaintiff's
complaint reversed and remanded.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 10, 1966.
This is an appeal by Margaret Doerr, plaintiff, from the order of the trial court dismissing Count I of her second amended complaint (herein called the complaint) against the defendant, Gustavo Villate, a physician and surgeon, because it was barred by the two-year provision of the statute of limitations.
In the complaint the plaintiff alleged that she was married, and prior to 1959 had given birth to two children, both of whom were retarded; that in 1959, she and her husband contacted the defendant and made known to him that the plaintiff wanted to be free from any further conception and childbearing; that the defendant entered into an oral contract with her, whereby he agreed to operate on and sterilize her husband; and that the defendant assured and warranted to the plaintiff that the operation would render her husband incapable of procreation as the result of her sexual relations with him.
The complaint further alleged that the operation was performed; that, relying upon the assurances and warranties of the defendant, the plaintiff and her husband resumed sexual relations and as a result, a child was born who was both retarded and physically deformed; that the defendant did not perform the operation properly, as warranted, and did not use proper care and skill therein and thereby was guilty of a breach of warranty and contract; and that as a result of such breach, she became liable for, and will continue to be liable for medical expenses and for other special care and attention necessary for the child thus born.
This action was commenced more than two but less than five years after the performance of the operation. The plaintiff contends that her claim is for property damages resulting from a breach of an oral contract; that the action is governed by section 15 of the statute of limitations; and that it is not barred for a period of five years. (Ill Rev Stats 1965, c 83, par 16.) The defendant contends that the trial court properly dismissed the complaint in that it alleged a cause of action arising from injuries to the person, which action is governed by section 14 and barred after two years from the date of its accrual. (Ill Rev Stats 1965, c 83, par 15.)
[1-3] In Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282, 285, 113 N.E. 620 (1916) the court stated that the applicability of a particular section of the statute of limitations depends on the express provision of the statute which fixes the limitation and not on the form of the particular action. In the sections of the statute under consideration, the limitations are based on the particular injury sued for or upon the obligation out of which the action grows. An action for personal injuries, whether based upon a contract or tort theory, is governed by the specific provisions of section 14 relating to personal injuries rather than the more general provisions of section 15. Handtoffski v. Chicago Consol. Traction Co., supra, 286; Jansen v. Illinois Municipal Retirement Fund, 58 Ill. App.2d 97, 105, 106, 206 N.E.2d 249 (4th Dist 1965); Seymour v. Union News Co., 349 Ill. App. 197, 200, 201, 110 N.E.2d 475 (1st Dist 1953); 25 ILP Limitations, § 32.
The same transaction, however, may give rise to an action ex delicto or ex contractu, as the pleader may choose. One transaction may result in personal injuries to one and property damage to another. The same transaction may impose both contractual and non-contractual duties on the various persons involved, and actions arising by virtue of medical malpractice are on no different footing than other types of action. Zostautas v. St. Anthony De Padua Hospital, 23 Ill.2d 326, 329, 178 N.E.2d 303 (1961).
In Zostautas, the court stated at pages 328 and 329:
"In the development of the law the relationship of physician and patient has given rise to actions of a hybrid nature (70 CJS 981; Giambozi v. Peters, (1940) 127 Conn. 380, 16 A.2d 833; Barnhoff v. Aldridge, (1931) 327 Mo 767, 38 S.W.2d 1029), sounding in tort or in contract (74 ALR 1256; 151 ALR 1027; 1953 Wn. ULQ 413, 416), and both theories are often advanced in alternative counts, as in the instant case. Conklin v. Draper, 241 NYS 529, affd 254 NY 620, 173 N.E. 892 (1930); Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957); Hickey v. Slattery, 103 Conn. 716, 131 Atl 558 (1926).
"Although these actions of malpractice and breach of contract may arise out of the same transaction, they are distinct as to theory, proof and damages. (McQuaid v. Michou, 85 N.H. 299, 157 Atl 881 (1932); Colvin v. Smith, 92 NYS2d 794 (1949); Robins v. Finestone, 308 N.Y. 843, 127 N.E.2d 330 (1955).) Actions in contract may be based upon an express promise by the physician, such as to perform a Caesarean section (Stewart v. Rudner), or to cure plaintiff of syphilis (Giambozi v. Peters), or to cure an illness within a specified time (Robins v. Finestone); or may be based upon the implied obligation arising out of defendant's employment as a physician to use proper skill and care (Hickey v. Slattery), or to furnish proper medical aid. (Conklin v. Draper.) In such actions liability is predicated on the failure to perform an agreed undertaking rather than upon negligence, and the damages are restricted to the payments made, the expenditure for nurses and medicines, or `other damages that flow from the breach thereof' (Conklin v. Draper), and do not include the patient's pain and suffering as in malpractice actions (Robins v. Finestone)."
The fact that the action is a "malpractice" action is insignificant, except for the fact that in such case the plaintiff is generally suing for damages resulting from injuries to his physical person. However, the applicability of sections 14 or 15 of the statute of limitations is determined by the nature of the injury resulting to the plaintiff.
In the case at bar there was no doctor-patient relationship between the plaintiff and defendant with reference to the operation in question. The plaintiff was neither treated nor injured by the defendant. The operation was not performed on her, although the complaint stated that it was performed as a result of an oral agreement between the plaintiff and the defendant. The complaint does not allege, and the plaintiff does not seek damages for any personal injury to her resulting from the operation, but rather she seeks damages for injury to her property. The damages sought were for defendant's breach of contract to produce an expressly promised and warranted result in the physical condition of plaintiff's husband and for breach of defendant's implied warranty to perform the promised services in a skilful manner, and for other damages attendant to such breach. Damages were not sought for the pain and suffering which plaintiff's husband experienced, as in malpractice actions.
Section 14 of the statute of limitations and its two-year bar does not apply to every action involving personal injuries, but rather to those where the plaintiff is suing for direct physical or mental injuries. Seymour v. Union News Co., 349 Ill. App. 197, 201, 110 N.E.2d 475 (1st Dist 1953); Menolascino v. Superior Felt & Bedding Co., 313 Ill. App. 557, 569, 40 N.E.2d 813 (1st Dist 1942); Roth v. Lundin, et ...