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98 Ohio App. 271

129 N.E.2d 182

57 OhioOp. 312

Swankowski v. Diethelm

Ohio Court of Appeals

Decided December 7, 1953

Ohio Court of Appeals · decided 1953-12-07

Good law ✅— No negative treatment on recordhow we know

Decided 1953-12-07

How this case has been cited

Cited by 18 later decisions — most recently April 1993

3 federal appellate · 15 state decisions

7019531960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Fess, J.,

¶1 concurring. The period of limitation within which an action must be commenced is to be determined from the nature of the demand and the ground of action as set forth in the pleadings. State, ex rel. Lien, Supt., v. House, 144 Ohio St., 238, 58 N. E. (2d), *276 675. The limitation is imposed on the cause of action, and the form in which it is brought is immaterial. Andrianos v. Community Traction Co., 155 Ohio St., 47, 97 N. E. (2d), 549. The majority rule applies this principle to actions for malpractice. 74 A. L. R., 1256; 151 A. L. R., 1028; Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639. Thus, in determining this appeal, we look to the substance rather than to the form of the action.

¶2 A fraudulent concealment by which a plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations, nor may the bar of the statute be avoided ordinarily by pleading fraudulent concealment. Fee’s Admr. v. Fee, 10 Ohio, 469; Marblehead Bank Co. v. Raridon, 4 Ohio App., 468; Howk v. Minnick, 19 Ohio St., 462, 2 Am. Rep., 413; Minster Loan & Savings Co. v. Laufersweiler, 67 Ohio App., 375, 36 N. E. (2d), 895; Tulloch v. Haselo, 218 App. Div., 313, 218 N. Y. Supp., 139.

¶3 The alleged failure of the defendant to disclose to plaintiff his negligent conduct in itself involved a breach of duly constituting malpractice. Plaintiff’s cause of action is therefore barred by Section 11225, General Code.

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