Lakeman v. LaFrance, 156 A.2d 123 (N.H. 1959). · Go Syfert
Search
Lakeman v. LaFrance, 156 A.2d 123 (N.H. 1959). Cases Citing This Book View Copy Cite
“it is well established that our courts will not countenance fraudulent conduct.”
116 citation events (13 in the last 25 years) across 17 distinct courts.
Strongest positive: Begley v. Windsor Surry Co., et al. (nhd, 2018-03-19)
Treatment trajectory · 1960 → 2026 · click a year to view as-of
1960 1993 2026
Top citers, strongest first. 32 distinct citers.
discussed Cited as authority (verbatim quote) Begley v. Windsor Surry Co., et al.
D.N.H. · 2018 · quote attribution · 1 verbatim quote · confidence high
it is well established that our courts will not countenance fraudulent conduct.
cited Cited as authority (rule) Sargent v. Atrium Medical Corporation
D.N.H. · 2019 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 (1959).
cited Cited as authority (rule) Croucher v. Atrium Medical Corporation
D.N.H. · 2019 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 (1959).
cited Cited as authority (rule) Hickinbottom v. Atrium Medical Corporation
D.N.H. · 2019 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 (1959).
cited Cited as authority (rule) Shumaker v. Atrium Medical Corporation
D.N.H. · 2019 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 (1959).
cited Cited as authority (rule) Colleen Perry v. Insys Therapeutics, Inc.
D.N.H. · 2019 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 (1959).
discussed Cited as authority (rule) Fuller Ford v. Ford Motor et al.
D.N.H. · 2001 · confidence medium
Thus, even if the New Hampshire Supreme Court were to recognize a continuing violation exception to the state's general statutes of limitation, that exception would not save the plaintiffs' claims in this case. - 19 - The "fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence." Bricker v. Putnam, 128 N.H. 162, 165 (1986) (citing Lakeman v. LaFrance, 102 N.H. 300, 303-04 (1959)) .
discussed Cited as authority (rule) Keshishian v. CMC Radiologists
N.H. · 1997 · signal: cf. · confidence medium
Cf. Lakeman v. LaFrance, 102 N.H. 300, 304 , 156 A.2d 123, 126-27 (1959) (no constitutional right to jury trial on claim that statute of limitations was tolled by fraudulent concealment because claim is equitable in nature).
discussed Cited as authority (rule) Mitsubishi Mot. v. Portsmouth Imp.
D.N.H. · 1996 · confidence medium
La France, 102 N.H. 3 0 0 , 3 0 4 , 156 A.2d 123, 126 (1959) ("The nature of the case and of the relief sought must be looked to for the settlement of the constitutional question." (quotation marks omitted)); Tibbets, 96 N.H. at 298 ; 75 A.2d at 717 (availability of jury trial determined by reference to nature of case, relief sought, and ascertainment of how jury was used prior to 1784). 3 3 The court is not persuaded by Mitsubishi's textual analysis of the statutes in question, particularly RSA 358-A:10(I), which provides: If the court finds for the plaintiff, recovery shall be in the amount …
cited Cited as authority (rule) Conrad v. Hazen
N.H. · 1995 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303-04 , 156 A.2d 123, 126 (1959).
discussed Cited as authority (rule) White v. Francoeur
N.H. · 1994 · confidence medium
Cf. Belcher v. Paine, 136 N.H. 137, 149 , 612 A.2d 1318, 1326 (1992); Kantor v. The Norwood Group, 127 N.H. 831, 834 , 508 A.2d 1078, 1081 (1986); Lakeman v. LaFrance, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959).
discussed Cited as authority (rule) Prudential Insurance Co. of America v. United States Gypsum Co. (2×)
D.N.J. · 1993 · confidence medium
Grace & Co., 764 F.Supp. 213, 217 (D.N.H.1991) (Devine, C.J.) (citing Lakeman v. LaFrance, 102 N.H. 300 , 156 A.2d 123, 126 (1959)).
discussed Cited as authority (rule) Cheshire Medical Center v. W.R. Grace & Co.
D.N.H. · 1991 · confidence medium
Nor do defendants discuss the tolling doctrine of fraudulent concealment, which New Hampshire has long observed in order to avoid giving “a wrongdoer the advantage and benefit of his fraudulent concealment of a cause of action until the statute of limitations has run.” Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959).
cited Cited as authority (rule) Keeton v. Hustler Magazine, Inc.
N.H. · 1988 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959).
discussed Cited as authority (rule) Rowe v. John Deere
N.H. · 1987 · confidence medium
This question involves a proposed extension of the so-called discovery rule first enunciated by this court in the context of fraudulent concealment of tortious behavior by a wrongdoer, see Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959), and later applied in the case of a foreign object left in a patient’s body, Shillady, 114 N.H. at 324 , 320 A.2d at 639 .
discussed Cited as authority (rule) McElroy ex rel. Action Manufacturing Co. v. Gaffney
N.H. · 1987 · confidence medium
It is well recognized that the right has no application in special, statutory, or summary proceedings unknown to the common law, id. at 340 , 53 A.2d at 432 , or to purely equitable proceedings, Lakeman v. LaFrance, 102 N.H. 300, 304 , 156 A.2d 123, 126 (1959).
discussed Cited as authority (rule) Wolf Investments, Inc. v. Town of Brookfield
N.H. · 1987 · confidence medium
Statutes of limitation “are designed to expedite the orderly administration of justice,” Torr v. Dover, 107 N.H. 501, 503 , 226 A.2d 96, 98 (1967), and to eliminate stale claims, Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959).
cited Cited as authority (rule) Bricker v. Putnam
N.H. · 1986 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959); Bowman v, Sanborn, 18 N.H. 205, 209 (1846).
discussed Cited as authority (rule) City of Manchester v. National Gypsum Co.
D.R.I. · 1986 · confidence medium
The New Hampshire courts have characterized the fraudulent concealment exception as in the nature of equitable estoppel, e.g., Lakeman v. LaFrance, 102 N.H. 300, 304 , 156 A.2d 123, 126 (1959), and have included contract actions in its application, see Roberts v. Richard & Sons, Inc. 113 N.H. 154, 155 , 304 A.2d 364, 365 (1973) (plaintiff failed to allege fraudulent concealment and so did not come within exception).
cited Cited as authority (rule) Kantor v. Norwood Group, Inc.
N.H. · 1986 · confidence medium
Catholic Charities, 120 N.H. 501, 505 , 418 A.2d 224, 227 (1980) (quoting Lakeman v. LaFrance, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959)).
discussed Cited as authority (rule) Gould v. Concord Hospital (2×)
N.H. · 1985 · confidence medium
“Whether an action is one in tort or in contract ‘is not determined by the form of [the] action but by its substance.’” Guerin, 120 N.H. at 505 , 418 A.2d at 227 (quoting Lakeman v. LaFrance, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959)).
cited Cited as authority (rule) Hodgdon v. Beatrice D. Weeks Memorial Hospital
N.H. · 1982 · confidence medium
See Cloutier v. Kasheta, 105 N.H. 262, 264-65 , 197 A.2d 627, 628-29 (1964); Lakeman v. LaFrance, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959).
examined Cited as authority (rule) Premium Management, Inc. v. Robert Walker v. David M. Emery, Third Party (3×) also: Cited "see"
1st Cir. · 1981 · confidence medium
The fraudulent concealment exception, as most recently explained by the New Hampshire court in a 1974 dictum in the Shillady case, supra, p. 323, 320 A.2d 637 provides that “if a plaintiff’s lack of knowledge of ... a violation of her rights and of her resulting cause of action is due to fraudulent concealment by the one against whom it lies, the commencement of the running of the statute of limitations will be postponed ‘until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action.’ Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1…
discussed Cited as authority (rule) Woolley v. Henderson (2×)
Me. · 1980 · confidence medium
See, e. g., Harding v. Liberty Hospital Corp., 177 Cal. 520, 521-24 , 171 P. 98, 99-100 (1918); Benson v. Mays, 245 Md. 632, 636, 227 A.2d 220, 223-24 (1967); Lakeman v. La France, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959); Yeager v. Dunnavan, 26 Wash.2d 559, 562 , 174 P.2d 755, 757 (1946).
cited Cited as authority (rule) Raymond v. Eli Lilly & Co.
N.H. · 1977 · confidence medium
Lakeman v. La France, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959).
examined Cited as authority (rule) Shillady v. Elliot Community Hospital (3×)
N.H. · 1974 · confidence medium
Lakeman v. LaFrance, 102 N.H. 300, 305 , 156 A.2d 123, 127 (1959); see Roberts v. Richard & Sons, Inc., 113 N.H. 154 , 304 A.2d 364 (1973). *323 The necessary elements of a cause of action based upon negligence are the causal negligence of the defendant plus resulting harm to the plaintiff.
discussed Cited as authority (rule) William J. Emmett, Administrator of the Estate of Joseph N. Emmett v. Eastern Dispensary and Casualty Hospital
D.C. Cir. · 1967 · confidence medium
Searl v. Earll, supra note 22 , 95 U.S. App.D.C. at 156, 221 F.2d at 28-29; Phillips Petroleum Co. v. Johnson, 155 F.2d 185, 191 (5th Cir.), cert denied 329 U.S. 730 , 67 S.Ct. 87 , 91 L.Ed. 632 (1946); Guy v. Schuldt, supra note 17, 138 N.E.2d at 895 ; Lakeman v. LaFranee, 102 N.II. 300, 156 A.2d 123, 126 (1959). 35 .
discussed Cited "see" Franklin Lodge v. Marcoux
N.H. · 2003 · signal: see · confidence high
See Lakeman v. LaFrance, 102 N.H. 300, 304 (1959) (parties disputed whether defendant entitled to jury trial to resolve statute of limitations issue); Smith v. Manchester Management Corp., 117 N.H. 361, 362 (1977) (parties disputed whether defendant entitled to jury trial to resolve mismanagement of partnership affairs issue subsumed within equitable claim).
discussed Cited "see" Smith v. Cote (2×)
N.H. · 1986 · signal: see · confidence high
See Lakeman v. LaFrance, 102 N.H. 300, 304-05 , 156 A.2d 123, 127 (1959); Kelley, supra at 954.
discussed Cited "see" Smith v. Manchester Management Corp.
N.H. · 1977 · signal: see · confidence high
See Hampton v. Palmer, 99 N.H. 143, 145 , 106 A.2d 397, 399 (1954). “ ‘The nature of the case and of the relief sought must be looked to for the settlement of the constitutional question.’ ” Lakeman v. LaFrance, 102 N.H. 300, 304 , 156 A.2d 120, 126 (1959).
discussed Cited "see" Patrick v. Morin (2×)
N.H. · 1975 · signal: see · confidence high
See Lakeman v. LaFrance, 102 N.H. 300 , 156 A.2d 123 (1959).
discussed Cited "see, e.g." J.D. Knox Group v. New London Trust (2×)
D.N.H. · 1998 · signal: see, e.g. · confidence low
See, e.g., Lakeman v. LaFrance, 102 N.H. 300, 303 , 156 A.2d 123, 126 (1959).
Raymond B. Lakeman
v.
Philip LaFrance
4770.
Supreme Court of New Hampshire.
Dec 1, 1959.
156 A.2d 123
James J. Kalled and Philip J. Ganem (Mr. Ganem orally), for the plaintiff., Sidloway, Hollis, Godfrey & Soden and Robert P. Bass, Jr. (Mr. Bass orally), for the defendant.
Lampron.
Cited by 55 opinions  |  Published
Lampeón, J.

The first question transferred is the following: “In a malpractice action is the two year Statute of Limitations tolled by fraudulent concealment of facts allegedly giving rise to the cause of action?”

USA 508:4 provides that “Actions of trespass to the person, actions for malpractice, and actions for defamatory words may be[*303] brought within two years, and all other personal actions within six years, after the cause of action accrued, and not afterward.” Laws 1937, c. 21, s. 1, added actions for malpractice to the above statute which otherwise had been in substantially the same form since 1867. Ferry v. Ferry, 94 N. H. 395, 396.

Here is the chronology of events in this case. December 12, 1952 defendant is alleged to have carelessly and improperly operated upon and treated plaintiff’s hip so that in nailing the left femoral neck he drove the nail beyond the head of the femur and well into the acetabulum. July 21, 1955 the course of treatment by the defendant ended. March 12, 1956 plaintiff alleges he learned for the first time the facts which are the basis of this cause of action. December 17, 1957 plaintiff brought the writ commencing this, action.

Statutes of limitations are regarded as statutes of repose governing the period within which actions must be brought and are designed to eliminate fraudulent and stale claims. Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314; 53 C. J. S. 902; 63 Harv. L. Rev. 1177, 1185. “According to the majority rule . . . fraudulent concealment of a cause of action from the one in whom it resides by the one against whom it lies constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action.” Anno. 173 A. L. R. 576, 578. Guy v. Schuldt, 236 Ind. 101; Morrison v. Acton, 68 Ariz. 27; Hinkle v. Hargens, 76 S. D. 520. There is a contrary view that fraudulent concealment does not toll the operation of the statute unless the Legislature has expressly so stated in the statute itself. Guy v. Schuldt, supra, (dissenting opinion p. 114); 34 Am. Jur. 187.

It is well established that our courts will not countenance fraudulent conduct. Way v. Cutting, 20 N. H. 187, 190; Dion v. Cheshire Mills, 92 N. H. 414; Lampesis v. Comolli, 101 N. H. 279, 283. We refuse to presume that the Legislature intended to give a wrongdoer the advantage and benefit of his fraudulent concealment of a cause of action until the statute of limitations has run. We hold that the two-year limitation upon actions for malpractice is tolled by fraudulent concealment of facts essential to the cause of action until such time as the injured person has discovered them or could have done so in the exercise of reasonable diligence at which time the statutory period of limitation will start to run.[*304] Way v. Cutting, supra; Quimby v. Blackey, 63 N. H. 77; Hamlin v. Oliver, 77 N. H. 523; 41 Am. Jur. 233; anno. 144 A. L. R. 209, 215. The answer to the first question transferred is “yes.”

The second question is “If the foregoing question is answered in the affirmative, and if the issue of the Statute of Limitations is tried in advance of trial on the merits, is plaintiff entitled to trial by jury on this issue?”

Part I, Article 20th of our Constitution provides that “In all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced . . . the parties have a right to a trial by jury.” However “for many years it has been well settled here that in equity there is no constitutional right to trial by jury.” Dion v. Cheshire Mills, 92 N. H. 414, 416. “The nature of the case and of the relief sought must be looked to for the settlement of the constitutional question.” Daley v. Kennett, 75 N. H. 536, 540; Employers Assurance Co. v. Tibbetts, 96 N. H. 296; Hampton v. Palmer, 99 N. H. 143, 145.

In our opinion the defense that the statute of limitations has been tolled by fraudulent concealment is in the nature of an equitable estoppel. 34 Am. Jur. 323. Its purpose is to promote “the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience” to avail himself of his legal defense. Horn v. Cole, 51 N. H. 287, 291, 292; Dion v. Cheshire Mills, supra; Schofield v. Company, 90 N. H. 31; Bowen v. Casualty Co., 99 N. H. 107, 113; 1 Pomeroy, Equity Jurisprudence (5th ed.)698; 3 Id. 180; 24 A. L. R. (2d.) 419.

Although equity and law have jurisdiction over fraud “the nature of the relief is the key” to whether the particular issue is one at law or in equity. Dion v. Cheshire Mills, supra, 415. In the present case the plaintiff is seeking affirmative equitable relief from a legal bar to his action at law which has been asserted by the defendant and “if the issue of the Statute of Limitations is tried in advance of trial on the merits . . . [he is not] entitled to trial by jury on this issue.” Id., 416. The answer to the second question is “no.”

The final question is “Does the two year Statute of Limitations in malpractice actions apply to the count in Assumpsit as set forth in the writ?”

The relationship of physician and patient can give rise to two[*305] distinct causes of action, one for improper treatment, another for failure of a promised result. McQuaid v. Michou, 85 N. H. 299, 300; Colvin v. Smith, 276 N. Y. App. Div. 9. The two causes of action are dissimilar as to theory, proof and damages recoverable. Stewart v. Rudner, 349 Mich. 459, 468. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The damages recoverable are for personal injuries including pain and suffering which naturally flow from the tortious act. Mehigan v. Sheehan, 94 N. H. 274. An action in contract is based upon a failure to perform a special agreement. The rule of damages is “the difference between the values of the condition promised and the actual condition, including incidental consequences fairly subject to contemplation by the parties when the contract is made.” McQuaid v. Michou, supra, 303; Hawkins v. McGee, 84 N. H. 114, 117.

We are of the opinion that by its terms the two-year limitation contained in RSA 508:4 was intended to apply to an action of tort for malpractice but not to an action of assumpsit for breach of contract. Robins v. Finestone, 308 N. Y. 543; anno. 74 A. L. R. 1256, 1260. However the limitation is not determined by the form of the action but by its substance. Ferry v. Ferry, 94 N. H. 395, 396. An action regardless of its form based on the improper performance by a physician of his duties is subject to the two-year limitation provision for “actions for malpractice.” RSA 508:4; anno. 151 A. L. R. 1027; 41 Am. Jur. 232.

Plaintiff’s second count contains the following allegations: “Defendant . . . promised the Plaintiff by a special contract to set and cure, and heal the Plaintiff’s hip in a skillful and proper manner . . . yet the Defendant ... did not set, cure and heal the Plaintiff’s hip and left leg in a skillful and proper manner . . . but ... so unskillfully treated the same that by his unskillfulness the same became . . . stiff and immovable . . . causing the plaintiff great inconvenience and suffering.” Although this count also alleges an express contract between the parties the gist of the allegations is defendant’s wrongful act. It alleges an action for treatment in an improper manner rather than one for breach of a contract to achieve a promised result and comes within the two-year limitation of RSA 508:4. McQuaid v. Michou, supra; Swankowski v. Diethelm, 98 Ohio App. 271; Horowitz v. Bogart, 218 N. Y. App. Div. 158; 70 C. J. S. 984.

[*306] The answer to the third question is “yes,” the two-year statute of limitations applies to the count in assumpsit as set forth in the writ.

Remanded.

All concurred.