#### Frechette, Appellant, vs. Ravn, Respondent.

*February 24*

March *14, 1911.*

*Pleaching: Answer: Demurrer: Action, tort or contract? Malpractice by surgeon: Limitation.*

1. An answer should he held good on demurrer if it states a defense to any cause of action which plaintiff has pleaded and on which he has a right to rely.

2. Thus, in an action against a surgeon for malpractice where the complaint hy liberal construction might be held to state a cause of action on contract, but was clearly intended to state a cause of action in tort and contains the necessary averments for that purpose, and plaintiff has made no election of the cause of action upon which he will rely, the defendant may plead the statute of limitations applicable to the action in tort, and the demurrer' to such,an answer should be overruled.

3. The limitation prescribed in subd. 5, sec. 4222, Stats. (1898),— requiring notice to be served within one year as a condition precedent to maintenance of an action for injury to the person, — is applicable to an action in tort for malpractice by a surgeon. [Whether it applies when such an action is based on contract, not determined.]

. Appeal from a judgment of the circuit court for Lincoln county: A. HJ Eeid, Circuit Judge.

*Affirmed.*

This is an action for malpractice brought against the defendant, who is a physician and surgeon. On Eebruary 11, 1904, the plaintiff suffered injuries to his hands and right wrist. He applied to the defendant for medical and surgical treatment, which resulted in the amputation of his right hand at the wrist joint. Several bones in his left hand were broken and this injury was also treated by the defendant. Plaintiff brings this action for malpractice to recover damages in the sum of $20,000, setting up two causes of action in his complaint, (1) alleging negligent and unskilful treatment which resulted in the unnecessary amputation of his right hand, and (2) alleging that by reason of the negligent *590and unskilful manner in which the defendant examined and administered to plaintiffs injuries the bones which were broken in his left hand were not set in place until eight days after the injury, as a result of which the fingers of said hand have become stiffened and the usefulness of the hand impaired, and that plaintiff has suffered great physical pain. The answer of the defendant is a general denial, and as a second defense to each of the two causes of action defendant alleges that he began his treatment of the plaintiff’s injuries ■on the 11th of Eebruary, 1904, and that plaintiff left his ■care and treatment on Eebruary 25, 1904, and after that date received no further medical or surgical attention from him; that this action was commenced on Eebruary 4, 1910, and that no notice in writing as required by subd. 5, sec. 4222, Stats. (1898), has ever been served on said defendant. Plaintiff demurred to the second defense set out in defendant’s answer, which demurrer was overruled. This .appeal is taken from the order overruling plaintiff’s demurrer.

Eor the appellant there was a byief by *Van FLecIce ■& Fisher,*and oral argument by *John Van 'Eeclce.*\

Eor the respondent there was a brief by *Smarf)^Van Doren & Gurtis,*and oral argument by *E.*I\(. *Van DorenX*

Barnes, J.

The plaintiff has divided what is probably a single cause of action into two causes of action. No objection has been taken to the division, however, and we mention it lest the opinion should be construed as an approval of the method of pleading pursued. The wording of the two causes of action differs only in the recital of the character of the injuries, and both causes of action fall within the same category. Eor convenience in the subsequent discussion we will treat the complaint as though it contained but a single cause of action.

Eor the purposes of discussion in this case we will assume *591without Jedding that if the action is based on contract the one-year limitation contained in subd. 5 of sec. 4222, Stats. (1898), has no application to it. The action is plainly one to recover damages for injury to the person, and if it is in tort the one-year limitation referred to applies. The complaint states a good cause of action in tort, and it is apparent from the allegations therein found that the pleader intended to state a cause of action sounding in tort. It alleges that the defendant was.employed to treat the plaintiff, but does not set forth what the contract duties of the defendant were in the premises and does not allege in terms' that any contract obligation was breached. It does set forth that the defendant negligently and unskilfully examined the plaintiff and arrived at a wrong nonolusion on such examination and negligently operated upon the plaintiff in an unskilful manner. Damages are asked for mental pain and suffering as well as for the injury to the hands and arms of the plaintiff. Such damages are hardly recoverable in an action on contract. *Walsh v.*C., *M. & St.*P. *R. Co.*42 Wis. 23; *Brown v. C., M. & St. P. R. Co.*54 Wis. 342, 349, 11 N. W. 356, 911. By a liberal construction of the complaint there is enough in it by way of averment to state a cause of action on contract. But applying to it the test prescribed in *Boehrer v. Juergens & A. Co.*133 Wis. 426, 429, 113 N. W. 655, it is quite clear that the pleader intended to state a cause of action in tort and not one on.contract.

'In this situation, should this court treat the action as one on contract and not one in tort? If not, then the order of the circuit court overruling the demurrer to the plea of the statute of limitations contained in the answer is correct. It was said in *Bieri v. Fonger,*139 Wis. 150, 153, 120 N. W. 862, that: “If facts are stated constituting a good cause of action, though not the one the pleader intended, the pleading is good as against a general demurrer.” This rule is followed in *Bruheim v. Stratton, ante,*p. 271, 129 N. W. 1092. *592No attack is made on the complaint in this case by demurrer or otherwise. The defendant does not seek to sustain its. answer against the plaintiff’s demurrer by asserting that the complaint does not state a cause of action.

Conceding that the complaint contains facts sufficient to. state a cause of action on contract, it also contains the necessary averments to set forth a cause of action in tort. The plaintiff has made no election as to which cause of action he will rely on, and this court cannot make any election for him on the present state of the record. Eor aught we know he may be able to prove that the statutory notice was given or that it was waived, and will elect to pursue his remedy in tort, wherein damages are recoverable which cannot be awarded on contract and wherein he may have execution against the body to collect any judgment he may recover. While the plaintiff for the purposes of his demurrer admits that the notice was not served,, he is also insisting that no notice is necessary in either a contract or a tort action, and he would be permitted on the trial *to*prove that notice was given. The cause of action in tort has not been withdrawn and may never be withdrawn. So long as it confronts the defendant he has the right to checkmate it by pleading the statute of limitations applicable to it. It is not a question of there being a cause of action on contract stated, to which the statute does not apply, but of there being a cause of action in tort stated, to which it does apply. As a complaint is held good on demurrer if it states any cause, of action, so an answer should be held good on demurrer if it states a defense to any cause of action which the plaintiff pleads and on which he has a right to rely. Unless we say to the plaintiff, “Tour complaint states a cause of action on contract and you must not rely on the cause of action in tort stated therein,” we should not deny to the defendant the right to defend against the tort action that is stated. It was lawyer-like- and proper for the defendant’s counsel to answer as they did and nothing has occurred to render that answer improper. *593If the plaintiff considered it advisable to proceed on contract rather than in tort he should have amended his complaint. Then if the statute of limitations were pleaded and the plea was not a proper one the demurrer would be well taken. So long as the plaintiff chooses to present a pleading for which different things may be claimed on the trial the defendant has a right to present an answer that is pertinent and applicable to the different aspects in which the complaint may be viewed. If this court should sustain the demurrer to the answer and the plaintiff should insist on the trial on his right to proceed and recover in tort, the trial court might have as difficult a problem to work out as he would encounter if he were trying to determine “how old Ann was.” The plaintiff cannot be permitted to maneuver the defendant out of a valid defense to the cause of action in tort until he lets go of such cause of action.

*■By the Court.*— Judgment affirmed.