589 P.2d 334 (1979)

"Pony" DUKE, Appellant (Defendant below),
v.
Margaret HOUSEN, Appellee (Plaintiff below).

No. 4811.

Supreme Court of Wyoming.

January 12, 1979. Rehearing Denied March 2, 1979.

*337 Robert A. Gish, Basin, and R.R. Bostwick, Casper, signed the briefs. R.R. Bostwick, Casper, appeared in oral argument on behalf of appellant.

G.L. Spence, Casper, signed the briefs and appeared in oral argument on behalf of appellee.

Before RAPER, C.J., and GUTHRIE,^[*] McCLINTOCK and THOMAS, JJ., and ARMSTRONG, D.J., Retired.

Rehearing Denied March 2, 1979. See 590 P.2d 1340.

RAPER, Chief Justice.

In the appeal now before the court, appellant-defendant challenges the jury verdict and district court judgment entered against him awarding to appellee-plaintiff, based upon defendant's alleged grossly negligent infection of plaintiff with venereal disease, compensatory and punitive damages in the sum of $1,300,000. Through this appellate challenge, defendant raises the following questions:

*338 1. Is the action barred by a statute of limitations?

2. Are the damages excessive?

3. Is the defense of assumption of risk or other defense a bar to plaintiff's recovery as a matter of law?

4. Was there reversible error in the admission of the testimony of Janet Woodenlegs?

5. Were the instructions on punitive damages improper?

6. Was there plain and fundamental error?

For the reasons stated in detail herein, we shall reverse on the ground that the action is barred by the statute of limitations and not consider the other issues.

In early April, 1970, plaintiff was living, working, and going to college part-time in the Washington, D.C. area. On April 4 of that year she was introduced by her brother to defendant; and on the same night and early morning of April 5, following dinner and dancing plus moderate drinking, engaged in sexual intercourse with defendant in the front seat of his pickup truck. On April 8th, at least partially in response to defendant's sudden and convincing professions of love and desire to marry, plaintiff met defendant at the LaGuardia airport in New York and subsequently traveled by truck with him from New York to Denver, Colorado, engaging on and off in acts of sexual intercourse with defendant along the way. Upon reaching Denver, defendant, having lost interest in plaintiff, lodged her in a local hotel and left for his home in Meeteetse, Wyoming. Plaintiff, after contacting her brother and waiting for him to arrive, subsequently traveled to Meeteetse and confronted defendant concerning his behavior. As a result, it was agreed that defendant would accompany plaintiff and her brother back to Washington, D.C. and apologize to the family; yet after arriving in Washington and discussing the situation with her family, plaintiff for some reason which is neither totally clear nor probably capable of elucidation, accompanied the defendant to New York, there occupying a hotel room together and engaged once more in sexual intercourse with him. Finally, on the morning of April 21, 1970, defendant broke off his relationship with the plaintiff and informed her for the first time that he had venereal disease, gonorrhea, and that now she probably had it too.

At trial, through the presentation of voluminous testimony by both parties, it was established that at some time prior to March 22, 1970, defendant had become aware that he was probably infected with venereal disease for on that day he visited a doctor in Dallas, Texas, complaining of pain and a urethral discharge. In response, the examining physician took a sample of the discharge for testing and administered a large dosage of fast-acting penicillin, telling defendant to return the next day for the test results. When defendant returned on March 23, 1970, the test results for gonorrhea having been found positive, a larger dose of a longer-acting penicillin was administered and defendant was advised to see his own doctor for further treatment. Defendant then left by plane for New York, arriving the same day, March 23, where immediately upon arrival he contacted his own physician, who after an external examination, stated that he could find no "clinical evidence of gonorrhea" — defendant had no current urethral discharge. On the basis of the previous treatment and this current information, defendant asserted at trial that it was his belief that as of his first sexual contact with the plaintiff on the night of April 4-5, 1970, his infection with gonorrhea had been cured.

Plaintiff, after being told by defendant on April 21, 1970, that she had probably contracted gonorrhea from him and should see a doctor, left New York for Washington, D.C. and, the following day, April 22, 1970, visited her personal physician who through a smear test confirmed that gonorrhea was present. In response to medication, plaintiff's infection with what her physician described as a "classic case of asymptomatic gonorrhea" was arrested by May 14, 1970, but more serious problems were to develop. Beginning in January, 1973, plaintiff noticed a pain in her lower *339 right side which by March, 1973, had become so severe and constant as to require medical attention. After various external medical tests provided negative results and antibiotic medication proved ineffective, major exploratory surgery was performed in July, 1973. As a result, plaintiff's physician found that because of the gonorrhea infection, and possibly other related secondary infections as well, scar tissue adhesions had formed within a number of areas of appellee's lower abdomen. He testified that although he had lysed (loosened or detached by surgical procedures) the adhesions, thus somewhat relieving temporarily the severe pain, because of the nature of the scar tissue involved, new adhesions would eventually form and the pain would very probably return again and continue in this cyclical manner for the remainder of plaintiff's life. He further advised that because of the scarring involved, plaintiff's ability to bear children had been greatly reduced.

This case is not the first lawsuit filed by the plaintiff against defendant. The record discloses that on April 5, 1971, a complaint was filed in a case entitled Margaret Housen v. Angier St. George Biddle Duke, Jr., Civil No. 8557, in the District Court, Fifth Judicial District, Park County, Wyoming, which recited the relationship between plaintiff and defendant with dates and events consistent with plaintiff's testimony in the instant case, including the following:

"(6) That the Plaintiff did thereafter learn that she had contracted from Defendant a venereal disease, as a result of which the Plaintiff was subjected to medical expense for the care and treatment thereof, together with great pain, suffering, disgrace and humiliation in the eyes of her family and friends.

"(7) That the Defendant, at the times and places aforesaid, and knowing that he was infected with a communicable venereal disease, did then and there negligently, carelessly, and with utter and wanton disregard for the rights of the Plaintiff, expose and transmit to the Plaintiff an infectious venereal disease.

"(8) That as a proximate result of the negligent and careless acts of the Defendant, as aforesaid, the Plaintiff has suffered damages, and will continue to suffer damages from her humiliation and disgrace as aforesaid, damages in the sum of $100,000.00.

"WHEREFORE plaintiff prays judgment against the defendant as follows:

"(a) For general damages for her medical expenses, pain, suffering, disgrace and humiliation in the sum of $100,000.00;

"(b) For punitive damages in the sum of $100,000.00;

"(c) For her costs incurred in this action; and

"(d) For such other and further relief as to the Court may seem just and proper."

That complaint is noticed by the trial judge in two of his orders. That case was later dismissed.

Plaintiff filed this new action on April 19, 1974, seeking hospital expenses, doctor's expenses, wage loss, future medical expense, as well as damages for pain and suffering, present and future. In addition, based on an allegation that defendant was guilty of gross negligence when he infected her with gonorrhea, plaintiff requested $1 million in exemplary damages. By interrogatory, the jury found that defendant had been infected with gonorrhea at the time of his relations with plaintiff between April 4 and April 21, 1970;^[1] and by verdict awarded *340 plaintiff $300,000.00 in compensatory damages, and $1,000,000.00 in exemplary or punitive damages. Following denial of various posttrial motions, the appeal herein was filed.

By way of both the answer filed in response to plaintiff's complaint as well as by motions prior, during and after trial, defendant alleged and strongly argued that based upon applicable statutes and case law, plaintiff's cause of action had been barred by the passage of time and her complaint should therefore be dismissed. Rule 8(c), W.R.C.P. requires that the statute of limitations be specifically set forth as an affirmative defense. In response, the trial judge ruled that inasmuch as plaintiff's scar adhesions had not been discovered until a date much later than when the infection itself had occurred, the applicable time period for limitation of action purposes was to be computed only from discovery of the adhesions; and defendant's assertion was thus denied.

Statutes of limitation have long been a part of the jurisprudence of the United States, all its states and the State of Wyoming. They are pragmatic devices to save courts from stale claim litigation and spare citizens from having to defend when memories have faded, witnesses are unavailable by death or disappearance and evidence is lost. Statutes of limitation are arbitrary by their very nature and do not discriminate between the just and unjust claim. They are not judicially made but represent legislative and public policy controlling the right to litigate. Chase Securities Corporation v. Donaldson, 1945, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628; reh. den. 325 U.S. 896, 65 S.Ct. 1561, 89 L.Ed. 2006. The statutes operate against even the most meritorious of claims and courts have no right to deny their application. In re Smith's Estate, 1949, 240 Iowa 499, 36 N.W.2d 815, 8 A.L.R.2d 640. When considering the statute of limitations, the nature of injury, its extent, the amount of money damages involved, social considerations, and the emotional appeal the facts may have must pass to the background. The circumstances are only significant in the bearing they may have on where the cause of action arose, when it arose and when the time expired for pursuing the applicable judicial remedy.

Wherever we refer in this opinion to dates, places, or circumstances, such reference will be derived entirely from the evidence of the plaintiff, undisputed facts and answers of the jury to interrogatories propounded to them. We will disregard any evidence of the defendant in conflict. There is therefore left only a question of law to decide. We cannot and will not decide any questions of fact.

At the very foundation of plaintiff's claim against defendant lie the principles of the law of tort. One who negligently exposes another to an infectious or contagious disease, which such other person thereby contracts, can be held liable in damages for his actions. Earle v. Kuklo, 1953, 26 N.J. Super. 471, 98 A.2d 107 (tuberculosis); Edwards v. Lamb, 1899, 69 N.H. 599, 45 A. 480 (infection from a wound); Kliegel v. Aitken, 1896, 94 Wis. 432, 69 N.W. 67 (whooping cough); Franklin v. Butcher, 1910, 144 Mo. App. 660, 129 S.W. 428 (smallpox). Yet while the basic claim raised by plaintiff, albeit an unusual one, sounds in tort, the circumstance of its pursuance in Wyoming is somewhat unique. Since, as the evidence points up, there was no sexual contact between plaintiff and defendant in Wyoming, nor any tortious injury in this state, simple logic reveals that there could be no tortious conduct, no negligent exposure of plaintiff's body to disease by defendant in this, the forum state. There can be no question that plaintiff's cause of action could only be found as having arisen elsewhere.

An actionable tort is made up of several elements. A cause of action must arise *341 before limitations start. Prosser, Torts, 4th Ed., § 30, pp. 143-44, outlines the steps:

"Negligence, as we shall see, is simply one kind of conduct. But a cause of action founded upon negligence, from which liability will follow, requires more than conduct. The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:

"1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

"2. A failure on his part to conform to the standard required. These two elements go to make up what the courts usually have called negligence; but the term quite frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.

"3. A reasonable close causal connection between the conduct and the resulting injury. This is what is commonly known as `legal cause,' or `proximate cause.'

"4. Actual loss or damage resulting to the interests of another. Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff's case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.

* * * * * *

"It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.

* * * * * *"

(Footnotes omitted.)

A "cause of action" is the fact or combination of facts which give rise to a "suit", the latter being a proceeding to enforce a right. State ex rel. Merritt Oil Corporation v. District Court of Sixth Judicial District In and For Converse County, 1932, 44 Wyo. 437, 13 P.2d 568, 570, cert. den. 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575. This court very recently in Cantonwine v. Fehling, Wyo. 1978, 582 P.2d 592, a promissory note case, with approval quoted from Bruner v. Martin, 1907, 76 Kan. 862, 93 P. 165, 166:

"* * * But the time when the cause of action arises determines also the place where it arises; for when that occurs which is the cause of action, the place where it occurs is the place where the cause of action arises. * * *"

The heavy weight of authority in interstate tort cases such as here with elements in different jurisdictions, is that the law of the place where the plaintiff sustains injury to her person controls. Restatement of Conflict of Laws, § 377; 2 Harper and James, § 30.4, p. 1961.

At common law, the limitation period of the forum jurisdiction, the lex fori, generally controlled the time within which causes of action had to be pursued, regardless of the fact that the cause itself in all its elements may have accrued outside the forum jurisdiction. Only when the limitation of action statute of the foreign jurisdiction in which the cause arose could be deemed substantive law rather than procedural would the foreign statute be applied by the forum court. Parish v. B.F. Goodrich Co., 1975, 395 Mich. 271, 235 N.W.2d 570; Ehrenzweig, Conflict of Laws § 161 (1962); Vernon, Statutes of Limitation in the Conflict of Laws; Borrowing Statutes, 32 Rocky Mtn.L.Rev. 287 (1960). In order to avoid the confusion and problems associated with attempting to determine when a foreign limitation of action statute was substantive or procedural, a majority of states, including Wyoming, enacted what are referred to *342 as "borrowing" statutes. Section 1-3-117, W.S. 1977,^[2] which we find to be controlling in this regard, is simple and clear:

"If by the laws of the state or country where the cause of action arose the action is barred, it is also barred in this state."

The plaintiff takes an unusual position that since the case is tried in Wyoming, it must be tried under Wyoming law as a whole, including § 1-3-105, W.S. 1977,^[3] prescribing a period of limitation of four years "after the cause of action accrues," pertaining to causes of action arising in Wyoming. She then asserts that under the statutory section, since she discovered she was infected with gonorrhea "around April 22, 1970," her action was timely brought within the Wyoming four year period by filing her complaint on April 19, 1974. She elects to ignore the borrowing statute, § 1-3-117, supra. She then relies upon Union Stockyards Nat. Bank of South Omaha, Nebraska v. Maika, 1907, 16 Wyo. 141, 92 P. 619; and Riley v. Union Pacific Railroad Co., U.S.D.C.Wyo. 1950, 88 F. Supp. 391, aff'd. 10th Cir.1950, 182 F.2d 765 to support a 51 Am.Jur.2d, Limitation of Actions, § 66, p. 645 statement as follows:

"* * * the statutes of limitation of the place where the action is brought and the remedy is sought to be enforced, and not those of the place where the contract was made, the right in tort arose, or the plaintiff resides, or of the domicil of one or the other of the persons affected by the litigation, control in the event of a conflict of laws. * * *"

We have no argument with that rule in the case before us but we have no conflict of laws to make it applicable. Any conflict has been erased by the legislature by enactment of the "borrowing" statute fixing the statute of limitations of this state to be the same as that of the jurisdiction in which the cause of action arose. That is explained in the next section (67) of the Am.Jur.2d, supra, quote. The limitations law of the jurisdiction in which a cause of action arises is the law of this state and has been ever since territorial days, even though a defendant is properly before a Wyoming court, the place where he may be personally served with process and a remedy found.

The position we take in this case is entirely consistent with the past utterances of this court with respect to causes of action arising outside the state of Wyoming. It was declared to be the law of this state, in Ball v. Ball, 1954, 73 Wyo. 29, 269 P.2d 302, 304, quoting from 15 C.J.S. Conflict of Laws § 12, p. 897 (now 15A C.J.S. Conflict of Laws § 12(2) pp. 453-455):

"`It is thoroughly established as a general rule that the lex loci delicti, or the law of the place where the tort or wrong has been committed, is the law that governs and is to be applied with respect to the substantive phases of torts or the actions therefor, and determines the question of whether or not an act or omission gives rise to a right of action or civil liability for tort, * * *.'"

That rule is likewise in tune with the legislative policy of the state announced in its limitations "borrowing" statute. Cope v. Anderson, 1947, 331 U.S. 461, 67 S.Ct. 1340, 1343, 91 L.Ed. 1602, points out that the bottom line purpose of a state's borrowing statute is to require its courts to bar suits if *343 the right to sue had already expired in another jurisdiction where the crucial combination of circumstances giving the right to sue had taken place, the existence of which affords a party a right to judicial interference in his behalf.

Plaintiff also argues, and the trial judge so held, that the statute of limitations did not commence to run until October, 1973, when adhesions resulting from the infection were discovered because it is the injury therefrom for which the damages are sought.^[4] That position is not the accepted rule. The correct rule is very well summarized in 51 Am.Jur.2d, Limitation of Actions, § 135, p. 704:

"* * * As a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not required that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action, and is not legally severable from its consequences. * * *"^[5]

The doctrine is well supported by voluminous authority. We have selected some examples involving physical injury. By various ways and expressions they illustrate the rule. A cause of action accrues only when forces wrongfully put in motion produce injury. Schwartz v. Heyden Newport Chem. Corp., 1963, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, 4 A.L.R.3d 814, cert. den. 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (substance later learned to be dangerous injected in plaintiff's sinuses; discovered to be cause of cancer after limitation had run; plaintiff lost an eye as a result; action barred). A single act of negligence creates only one cause of action and damage arising years later from that act of negligence does not create a new cause of action. Schmidt v. Merchants Despatch Transportation Company, 1936, 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450 (pneumoconiosis).

The statute of limitations attaches when there has been notice of the invasion of a legal right of the plaintiff, even though notice of its consequences does not materialize until later. Cristiani v. City of Sarasota, Fla. 1953, 65 So.2d 878 (child struck violently about head by negligence of another, blindness developing as a result after statute had run; recovery denied). See also, Nardone v. Reynolds, Fla. 1976, 333 So.2d 25, citing Cristiani. In Dowling v. Lester, 1946, 74 Ga. App. 290, 39 S.E.2d 576, the defendant restauranteur was negligent in serving food containing a rock to plaintiff, which she bit down on resulting in a broken tooth, the rest of which was immediately extracted by a dentist and replaced with a denture *344 attached to an adjoining tooth. The adjoining tooth in time came loose, soreness developed and plaintiff developed a related physical condition, an injury to her person. The action was not brought within the applicable period of limitation from the date the tooth was broken. It was held that the new extent of injury arising from complications did not start the statute running anew.

Applying Louisiana law in Nivens v. Signal Oil and Gas Co., Inc., 5th Cir.1975, 520 F.2d 1019, reh. den., amend., 523 F.2d 1382, cert. den. 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763, plaintiff struck his head on a galley cabinet door suffering pain, dizziness, a red spot and swelling, later discovered to be a skull fracture with serious after effects. The Court held that the injuries could not be bifurcated and the later found complications made the subject of another and delayed prescriptive period. Where a coincidence of the negligent act and the fact of some damage occurs, the cause of action comes into being and the applicable statute of limitations begins to run, even though the ultimate damage is unknown or unpredictable. Dalton v. Dow Chemical Co., 1968, 280 Minn. 147, 158 N.W.2d 580 (poisoning from exposure to chemical in cleaning solvent; paraplegic barred).^[6] To allow successive actions as additional damages arise would nullify the statutes of limitation and defeat their very purpose.

The jury found as a fact that the defendant was the bearer of gonorrhea during the period April 4, 1970 to April 21, 1970. The plaintiff's testimony, admitted by the defendant, is that sexual intercourse between the plaintiff and defendant took place on the dates and in other state jurisdictions in accordance with an itinerary as follows:

April 4-5, 1970. State of Virginia. April 7-8, 1970. Tuxedo, New York. April 8-9, 1970. Erie, Pennsylvania. April 9-10, 1970. State of Iowa. April 10-11, 1970. Ogallala, Nebraska. April 20-21, 1970. New York City, New York.

There is no evidence of sexual intercourse taking place in the State of Wyoming. We must therefore look elsewhere for a jurisdiction in which the cause arose. While it is perhaps unusual that the defendant perpetrated his negligent acts and caused injury to plaintiff's body in several different states and which may give an appearance of complexity, an application of settled rules of tort law in the jurisdictions involved clears away any suggestion of obscurity.

The limitation of action statute of the foreign jurisdiction in which the cause in question arose is applied by the forum court irregardless of whether or not the foreign limitation could be characterized as substantive or procedural. Thus, in almost all instances, if a plaintiff's cause of action is time-barred in the jurisdiction in which the cause of action arose, it would be barred by the passage of time in the forum court as well. Such a rule not only clears up any substantive procedural conflict problem, but eliminates as well the possibility of the plaintiff shopping for a favorable forum in which to revive a dead claim. Long v. Pettinato, 1975, 394 Mich. 343, 230 N.W.2d 550; Ehrenzweig, Conflicts of Law, § 161 (1962); Vernon, supra, 32 Rocky Mtn.L.Rev. 287. It thus becomes of acute importance in the situation at bar to specifically determine, *345 for limitation of actions purposes, where and when plaintiff's cause of action arose. In making such a determination based upon a borrowed limitational period, in all jurisdictions having a borrowing statute, with the exception of Ohio, not only is the specific prescriptive period utilized, but all of its accouterments as well whether in the form of additional statutory provisions or interpretive judicial decisions. Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. of Fla.Law Rev. 33, 57 (1962). As the court in Devine v. Rook, Mo. App. 1958, 314 S.W.2d 932, 935, has very aptly stated:

"But when such [limitational] statute is so borrowed, it is not wrenched bodily out of its own setting, but taken along with it are the court decisions of its own state which interpret and apply it, and the companion statutes which limit and restrict its operation. This we think is the general law." (Bracketed material added, footnote omitted.)

Thus, in applying a "borrowed" statute, we must consider not only the borrowed limitation of action statute itself, but also any applicable tolling or other statutes as well as pertinent court cases. In effect, plaintiff's cause must be viewed as if filed in the state where under the laws of that state a cause of action accrued.^[7]

We find and hold that a cause of action arose in the state of New York on April 8, 1970 and April 21, 1970. New York City, New York was the place where the defendant committed his second and last acts of negligence in communicating disease to the plaintiff. In New York it has long been the rule that in classic actions of negligence, damage is the gist and essence of a plaintiff's cause, Schwartz v. Heyden Newport Chemical Corporation, supra, and the statute of limitations commences to run at the time injury is produced (in personal injury cases) and there is damage to the structure of the body. Schwartz holds that the cause of action is complete when the invasion of the body by injury takes place "independently of any actual pecuniary damage." The injury is considered a trespass upon the person of the injured plaintiff.

The court in Schwartz strongly relied on Schmidt v. Merchants Despatch Transportation Company, supra, the court in the latter case stating at 200 N.E. 827:

"That does not mean that the cause of action accrues only when the injured person knows or should know that the injury has occurred. The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues. Except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury. Consequential damages may flow later from an injury too slight to be noticed at the time it is inflicted. No new cause of action accrues when such consequential damages arise. So far as such consequential damages may be reasonably anticipated, they may be included in a recovery for the original injury, though even at the time of the trial they may not yet exist. When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues." [Citation of cases omitted.]

*346 "We must apply that rule here. The injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages, the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed, or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff's body through the defendant's alleged wrong. It cannot be doubted that the plaintiff might have begun an action against the defendant immediately after he inhaled the dust which caused the disease. No successful challenge could have been interposed on the ground that the action was prematurely brought because at the time it was commenced no serious damage to the plaintiff had yet developed. In that action the plaintiff could recover all damages which he could show had resulted or would result therefrom. In effect, the plaintiff is asking this court to hold that the statutory period of limitation begins only from the time that the plaintiff had reasonable assurance that serious damage had resulted or would result from past injury. The statute provides in unambiguous language that the period of limitation begins to run at the moment when right to begin an action accrues. The same test must be applied to a challenge that the action is stale as to a challenge that the action has been brought prematurely."

See also Thornton v. Roosevelt Hospital, 1977, 59 A.D.2d 680, 398 N.Y.S.2d 659, wherein a substance was injected into the plaintiff's decedent, allegedly resulting in the onset of cancer. The court held that "[t]he time of invasion of the decedent's body, and not any later time, began the period to be measured by the Statute of Limitation, and any such cause would also be time-barred." The court cited Schwartz and Schmidt as standing for that rule. Where more than the statutory period of limitations of three years from injury (onset of cancer) had lapsed, an action based on negligence as a cause was barred. Karp v. Liggett & Myers Tobacco Company, 1972, 40 A.D.2d 634, 336 N.Y.S.2d 101. New York jurisprudence has never retreated from that position in the ordinary negligently caused disease case.

The Schmidt doctrine as applied to this case means that a cause of action arose in New York when the defendant had sexual intercourse with the plaintiff at the Motel in the Mountains in Tuxedo, New York on the morning of April 8, 1970. At that time he introduced into the body of the plaintiff infectious pus producing bacteria known as gonococci, which causes the disease of gonorrhea. There is no question but that under the law of New York the defendant was guilty of a tortious act of negligence and the plaintiff was injured by the placement in her body of deleterious matter. Then on the morning of April 21, 1970, the defendant once again at a hotel in New York City, New York repeated the tortious act and once again in the same fashion introduced into the body of plaintiff the bacteria of gonococci.

It must be realized that the entire affair between plaintiff and defendant embraced only a period of about two weeks so, with the period of limitations involved, it would not make much difference whether the rule of New York, the rule of the statute starting on the date of last exposure mentioned elsewhere in this opinion or the rule of discovery which we use in Wyoming,^[8] were applied. It is not our choice; we must accept the law of the jurisdiction where the cause arose.^[9] We must therefore *347 conclude that since New York was the place of exposure, as was Schmidt's exposure to pneumoconiosis and the breathing of deleterious dust causing injury, a cause of action also arose in New York when defendant left gonococci in the plaintiff's body. It is a reasonable inference that since gonorrhea was found to exist in plaintiff the day after her final relations with the defendant, it existed likewise in New York. Having concluded a cause of action accrued in the State of New York, the "borrowing" statute of Wyoming controls the determination of whether or not plaintiff's action has been barred. Under New York law, an action to recover damages for personal injury, unless involving certain specific causes of action not relevant here, must be commenced within three years.^[10]

Plaintiff's cause of action accrued in New York at the latest on April 21, 1970, the date of last sexual contact between the parties. Disregarding for the moment any other possibly applicable statute, plaintiff's action not having been filed until April 19, 1974, it appears to be barred, and defendant has so asserted. In response, plaintiff has urged that because of defendant's absence from New York following his tortious conduct, the applicable limitation period has by statute been tolled. N.Y. CPLR § 207.^[11] We, as did the New York Supreme Court in a recent case, must disagree with the plaintiff. Burwell v. Whitmoyer, 1977, 56 A.D.2d 950, 392 N.Y.S.2d 512, 513:

"We now pass to plaintiff's contention that the statute of limitations was tolled pursuant to CPLR 207. While that section does provide for the tolling of the statute where a defendant is out of the state for more than four months after the action has accrued, subdivision 3 provides for an exception where the jurisdiction over the person can be obtained without personal delivery of the summons to him within the state. Although defendant absented himself from the state * * * the statute of limitations, in our opinion, was not tolled by CPLR 207 (citation omitted). Plaintiff at all times during *348 the statutory period could have obtained jurisdiction over defendant (CPLR 313; 308, subd. [5]; 302, subd. [a], par. 2)."

See as well, Yarusso v. Arbotowicz, 1977, 41 N.Y.2d 516, 393 N.Y.S.2d 968, 362 N.E.2d 600; Goodemote v. McClain, 1972, 40 A.D.2d 22, 337 N.Y.S.2d 79; Dobkin v. Chapman, 1968, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451; Fishman v. Sanders, 1965, 15 N.Y.2d 298, 258 N.Y.S.2d 380, 206 N.E.2d 326; Massik v. Zimmerman, 1966,