On appeal from the Supreme Court.
For the plaintiff-appellant, Stein, Hannoch & Lasser.
For the defendant-respondent, Edwards, Smith & Dawson (Edwin F. Smith and Charles M. James, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is an appeal by the plaintiff from a judgment entered on a nonsuit at the trial in the Hudson Circuit.
The defendant was a practicing physician and surgeon and was admitted to practice in this state in April, 1891. He operated on the plaintiff on August 10th, 1909, and inserted in the wound two drainage tubes, one of which is alleged to have entered and remained in the body. On October 29th, 1928 (nineteen years after the operation), the plaintiff instituted the present action.
The complaint consists of four counts. The first and third alleged negligence on the part of the defendant in not carefully treating the plaintiff, the leaving of a drainage tube in the wound and permitting it to enter and remain in the body, and claim damages for personal injury, medical expenses, and loss of earnings and business. The second count, charging fraud, was withdrawn at the trial. The fourth count is based upon a claim for damages arising out of injury
to the person by reason of the failure of defendant to properly perform the alleged contract to operate upon and treat plaintiff, and claiming like damages.
The defendant, answering the complaint, denied all charges of negligence, malpractice or faulty operation or treatment, and further set up that the cause of action was barred by the statute of limitations.
Judge Ackerson, to whom the case was referred for trial, granted defendant's motion for nonsuit on the ground that the cause of action was barred by the statute of limitations, and we think rightly.
The evidence of the plaintiff showed that the plaintiff was born January 27th, 1905; that in August, 1909, he then residing with his parents in Jersey City, became ill; that the defendant was called in to treat and care for him; that the plaintiff was suffering from pneumonia and later pleurisy set in; that the defendant advised an operation; that the operation was performed by defendant; that in the operation an incision was made in the right side of the plaintiff to relieve the pleurisy, and in the incision two tubes were placed for drainage purposes; that the wound was dressed by the defendant with the assistance of the plaintiff's mother, and at intervals the dressings were removed, the wound cleansed, and, at times, the drainage tubes cleansed; that this continued until January, 1910; that sometime toward the end of the treatment one of the drainage tubes was missing; that the plaintiff's mother called attention to the fact and asked if it could have slipped into the wound, and the defendant said that it had not, but if it had, it would dissolve; that the mother's thorough examination of the room and surroundings at that time disclosed conclusively that the tube was not to be found; that the defendant continued the treatment until January, 1910, ...