Opinion
No. 83.
Argued January 4, 1971. —
Decided February 2, 1971.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the plaintiff-appellant there was a brief by Petrie, Stocking, Meixner Zeisig, attorneys, and John J. Romann of counsel, all of Milwaukee, and oral argument by Mr. Romann.
For the defendant-respondent there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Robert C. Watson of counsel, all of Milwaukee, and oral argument by Mr. Watson.
An action was commenced on February 4, 1969, by Thomas J. Christy against A.B. Schwartz, M.D., and the Columbia Hospital, a Wisconsin corporation. The plaintiff alleges that he was born at the Columbia Hospital on February 4, 1947, and that shortly thereafter he sustained permanent injuries as a result of the negligence of Dr. Schwartz and the negligence of agents and employees of the Columbia Hospital. Plaintiff alleges that, by reason of his infancy, the statute of limitations upon his cause of action has not run and that he is permitted to commence the action within one year after the date on which he reached his majority.
The defendant, Columbia Hospital, answered, denying the allegations of negligence and also alleged as an affirmative defense that it is and was a charitable institution and that, at the time of the alleged negligence, it was immune from liability for the negligent acts of its servants. The hospital, on that basis, moved for summary judgment and filed an affidavit in proper form setting forth facts showing that it is a charitable institution and, under the law of negligence as it existed in 1947, was, under the doctrine of charitable immunity, exempt from liability. The facts in that affidavit were not controverted. The trial judge, on these undisputed facts, found that the hospital was a charitable institution and concluded:
"At that time the hospital, by reason of the doctrine of charitable immunity, was not liable for the negligent acts of its servants, agents or employes . . . ."
Judgment was entered dismissing the complaint. The plaintiff has appealed from the judgment.
The cause of action alleged against the physician is pending in the trial court and is not at issue on this appeal.
The plaintiff asserts that the proper rule of law is the one recognized at the time his cause of action "accrues." While acknowledging that the doctrine of charitable immunity persisted until the mandate in Kojis v. Doctors Hospital (1961), 12 Wis.2d 367, 107 N.W.2d 131, 107 N.W.2d 292, he takes the position that his cause of action accrued after that date. He contends it was only after his twenty-first birthday that he had the legal right to commence action for the injuries sustained in 1947. He relies on a series of cases which hold:
"`A cause of action does not accrue until the party owning it is entitled to begin and prosecute an action thereon; it accrues at the moment when he has a legal right to sue on it and no earlier.'" In re Estate of Hanlin: Killifea v. Douglas (1907), 133 Wis. 140, 145, 113 N.W. 411.
Similar language is used in Barry v. Minahan (1906), 127 Wis. 570, 573, 107 N.W. 488.
The rule was recently properly applied in the case of Holifield v. Setco Industries, Inc. (1969), 42 Wis.2d 750, 168 N.W.2d 177. Setco was a products liability case, and it reached the conclusion that, although the negligent manufacture of a grinding wheel occurred a number of years earlier, the cause of action did not accrue until the grinding wheel disintegrated during use and caused injury. It was only then that a legal right to sue for injuries arose. The Setco situation is entirely unlike the cause of action alleged in the instant case. The pleadings herein show that the negligence and the injury were substantially contemporaneous, although their full effects may have been perceived only later. Basically, the plaintiff contends that, since during minority he was not sui juris, he did not have the right to enforce his claim and that, hence, the claim did not accrue. The very statute upon which plaintiff relies refutes this rationale. Sec. 893.33, Stats., in pertinent part, provides:
" Persons under disability. If a person entitled to bring an action mentioned in this chapter be, at the time the cause of action accrued, either (1) Within the age of 21 years . . . the time of such disability is not a part of the time limited for the commencement of the action . . . ." (Emphasis supplied.)
Thus, the statute in question purports only to preserve a cause of action which has "accrued" at an earlier time during the period of disability. It in no way contemplates that the legal consequences of the alleged acts shall be determined by the status of the law at the time the injured party reaches his majority rather than at the time of his injury. The statute merely suspends the running of the time within which a lawsuit must be commenced on a valid cause of action. It confers no rights in addition to that. The policy of the law is to protect infants and to assure that rights already accrued are not lost. The purpose is not to confer additional rights.
Although infancy precludes the commencement of an action in the infant's name alone, a cause of action on his behalf can nevertheless be pursued during infancy. Sec. 260.22, Stats., states:
"When a party to an action or proceeding is a minor . . . he must appear either by the general guardian . . . or by a guardian ad litem . . . ."
Under our statutory scheme, a minor has the right to sue immediately upon the completion of the tort, even though the action at that time must be commenced by a guardian appearing on his behalf.
In Kojis we very carefully considered the question of retroactively applying the rule abolishing the defense of charitable immunity and concluded that the new rule of liability (except for Sunbursting the Ko]is Case itself) should be prospective only (pp. 373, 374). This was on the theory that charitable institutions, prior to the mandate in Kojis had not thought it necessary to purchase liability insurance to protect against the acts of their agents or employees and that it would be unfair to subject them to an unanticipated liability. The plaintiff herein asks us to frustrate that carefully considered policy because he was a minor at the time of his injury. The policy considerations which impelled this court to make the rule of Kojis prospective only are as compelling in the case of a minor as they were in the case of an adult. Judgment was properly entered for the defendant.
Great Northern Ry. v. Sunburst Oil Refining Co. (1932): 287 U.S. 358, 53 Sup. Ct. 145, 77 L. Ed. 360.
By the Court. — Judgment affirmed.