dissenting.
In brief outline of the basis of my dissent, I agree with the majority that under the common law, limitations of actions are governed by the law of the forum. Section 1-3-117, W.S.1977, the so-called borrowing statute, changes that rule only to the extent that we are required to apply the limitation of another state if it is determined that the “cause of action arose” in that other state. The majority recognize that both a wrongful act and a resulting injury are necessary to effect an actionable tort, and that the “law of the place where the plaintiff sustains injury to her person controls.” 589 P.2d at p. 341. The record does not disclose and neither the jury nor this court could find the specific state where either the wrongful act took place or the plaintiff sustained injury to her person. An essential prerequisite to application of our borrowing statute, namely, that there be a state from which to borrow, is then lacking. However, it might be logically consistent with § 1-3-117 to hold the action barred if, by the law of all the states where the action might possibly have arisen, the action is barred. That is not the situation here, since Nebraska and Wyoming, both of which are states where the injury could have taken place, have four-year statutes and both are discovery states. My essential disagreement with both the majority and concurring opinions is with their concept that discovery of the wrongful act and resulting injury is an essential condition to the existence of an actionable tort. I would hold that discovery is of importance only in determining when a statute of limitations begins to run. I would then hold that defendant, who bears the burden of proving facts bringing the case within an applicable statute of limitations, has failed in that burden. I would therefore not dismiss the action.
*355The jury has specially found that defendant was infected with gonorrhea during the period April 4 to 21, 1970, which was the period during which the parties had continuing sexual relations. The first element of an actionable tort then occurred when this infected person, knowingly or with careless disregard as to his condition, had sexual relations with plaintiff without taking possible and proper precautions to prevent transmission of the disease. But only if this act resulted in communication of the disease to his partner would there be an actionable wrong. Consistently with the testimony of Dr. Beletti that “one may have the disease and not necessarily transmit it to another,”1 neither the jury nor this court could or can properly find that on a specific date and at a specific place within a period of 18 days and an area of five states,2 the infection was transmitted to plaintiff. Nor could the jury or this court, consistently with any evidence in the cause, find that on a specific date within that 18-day period and at a specific place within an area of 11 states 3 the disease incubated and developed to a point of injury to plaintiff.
On the basis that chances of infection are not 100% and that the incubation period for the disease is variable,4 it is possible but not very probable that transmission, incubation and injury occurred in any one of the five contact states; it is similarly possible and perhaps more probable that transmission occurred in one state and this took effect, that is, injury occurred, in another. Consistently with the proper holding of the majority that it is the law of the state of injury5 and not of the wrongful act that determines whether a tort has been committed, it is possible that the tort could have become complete in any one of 11 states in which the plaintiff, in the company of the defendant, or separately, found herself during the 18-day sojourn between the first contact and confirmation of the existence of the disease in plaintiff in Washington on April 22.
I think it fairly obvious that our § 1-3— 117 was not adopted with this type of tort in mind and it is true that in most cases the state where the action arose is not too difficult to determine. In products liability cases, for example, where the negligence occurs in one state and the product is purchased and used in another state, with injury to the user, there is a clear demarcation. But in this case, which I think we all agree is one of first impression in its interstate nature, the place of injury is obscure and all *356we know is that at some time and place the plaintiff was injured through negligent act of the defendant. This has been found by the jury. I do not think that we can properly conclude that our legislature has said that if the action would be barred in one of a number of possible states, it is likewise barred in this state. The statute of no one state may be adopted unless it is clearly established that it was the place of injury.
Although it is the law of the place of injury that governs, the majority briefly and I think arbitrarily dismiss Wyoming as a possible place of wrong because no sexual act took place therein. If transmission of the disease through sexual intercourse is not certain and if there is an incubation period, then it is possible that transmission and planting of the infection occurred in one state and took effect in another. For example, it is entirely possible that this transmission occurred in Nebraska and took effect in Wyoming so that our state is not only the forum state of the action but is also the place of wrong. Although sexual contact occurred in Nebraska, the disease may have been transmitted through a previous contact, taking effect in Nebraska, so that was the state of injury. If the actionable tort was committed in Nebraska, conceded by the majority to be a discovery state, the statute would not start to run until the wrong was discovered. But that state is excluded by the majority only on the basis that discovery was made in either New York City or Washington, D. C., and discovery is said to be an essential element to the cause of action.
I would submit that the fact of discovery is not an essential ingredient to the existence of an actionable wrong and that the position of the majority (more clearly enunciated by Justice Thomas in his concurring opinion) is sustained neither by authority nor reason. Obviously no suit can be brought without knowledge of facts which constitute the basis of the claim, but as said in 1 Cooley on Torts, 4th Ed., § 46, p. 87, “it is the conjunction of damage and wrong that creates a tort.” As said by the Supreme Court of Washington in Highline School District No. 401, King County v. Port of Seattle, 87 Wash.2d 6, 548 P.2d 1085, 1090 (1976), “[a] cause of action accrues on the occurrence of the last element essential to the action.” In the same vein is Boulder City v. Miles, 85 Nev. 46, 449 P.2d 1003, 1005 (1969): “A cause of action accrues only when the forces wrongfully put in motion produce an injury.” Nowhere in these authorities or any that I have been able to find is it said that knowledge or discovery is an essential element of the actionable tort. The majority therefore assume a rule that has no judicial backing. While I cannot cite direct authority for my position, I believe it is consistent with principles set forth in the following citations.
In Cantonwine v. Fehling, Wyo., 582 P.2d 592, 596 (1978), we quoted with apparent approval this statement from the early case of Bliler v. Boswell, 9 Wyo. 57, 72, 59 P. 798, 803 (1899), reh. denied 9 Wyo. 57, 80, 61 P. 867:
“ ‘. . .A “cause of action” is defined as matter for which an action may be brought. It is said to accrue to any person when that person first comes to a right to bring an action. * * * Again, when a wrong has been committed, or a breach of duty has occurred, the cause of action has accrued, although the claimant may be ignorant of it. * * ” (Emphasis added)
I therefore conclude that it is only in the application of the statute of limitations to the remedy to be sought for an accrued cause of action that the question of discovery becomes of importance. It is only in connection with the question of limitations that we find judicial statements that the action has accrued upon “discovery” of the wrong or injury. It appears that this is a developing concept. In 2 Wood on Limitations, 4th Ed. 1916, § 276c(l), pp. 1408-1410, we find this broad statement:
“Mere ignorance of the existence of a cause of action does not prevent the running of the statute of limitations unless there has been fraudulent concealment on the part of those invoking the benefit of the statute.”
*357Examination of the whole section discloses no application of the discovery principle except in fraud cases. But this old rule has been changed in many states, including Wyoming, which as conceded by the majority has turned to the discovery rule. But this rule is of significance only when considering the question of when the statute of limitations begins to run. This quotation from Gazija v. Nicholas Jerns Company, 86 Wash.2d 215, 543 P.2d 338, 341 (1975) is particularly pertinent:
“While in many instances damage occurs and the action accrues immediately upon the occurrence of the wrongful act, this is not always true. In circumstances where some harm is sustained, but the plaintiff is unaware of it, a literal application of the statute of limitations may result in grave injustice. Courts have avoided this consequence of older cases like Shaw[6] by adopting the fictions of continuing negligence, fraudulent concealment or constructive fraud. There is now a wave of modern decisions which abandon these fictions and these simply hold that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury or by the exercise of reasonable diligence should have discovered it. [Citations omitted]
“Bearing in mind that we are construing a limitations statute and not just a definition of a cause of action, the word ‘accrued’ should be construed in a manner consistent with a prima facie purpose to compel the exercise of a right within a reasonable time without doing an unavoidable injustice.” (Emphasis added)
When the majority include discovery as an element in the accrual, that is the commission, of a completed tort, they ignore the whole manner in which the concept of discovery has developed. Schwartz v. Heyden Newport Chemical Corporation, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, 4 A.L.R.3d 814 (1963), cited by the majority, as well as the earlier case of Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450 (1936) are based on the proposition that “[t]he wrong is done, the right violated, and the cause of action complete when the invasion takes place,” 237 N.Y.S.2d at 717, 188 N.E.2d at 144. This being the case, the statute of limitations was read literally and it was said to begin to run from the time that the injury occurred, whether known or not. This was the established rule at the time Wood wrote his treatise in 1916. The development of the discovery rule was designed to get away from this harsh result and represented a different approach, as I have quoted from Gazija, supra, from the resort of some courts to such fictions as continuing negligence, fraudulent concealment or constructive fraud. As the whole matter is summed up in Prosser on Torts, 4th Ed., § 30, p. 144:
“ * * * Quite recently there have been a wave of decisions meeting the issue head-on, and holding that the statute will no longer be construed as intended to run until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it.”
Prosser does not say and the cases applying the discovery rule do not say that previous rules of tort law are amended to include discovery as an element of the tort. The decisions are strictly confined to a construction and application of the limitations statute.
I concede that I have referred to possibilities. If those possibilities concerned whether defendant had committed an actionable tort against plaintiff, it might well be said that plaintiff did not sustain the burden of proof resting upon her. However, defendant has not contended in his brief or upon oral argument that the evidence was insufficient to support the verdict of negligence rendered by the jury. The bar of the statute of limitations is one sought to be raised by the defendant in avoidance of established liability. In such case, “[t]he party pleading the statute of limitations has the burden of proving that *358the action is barred.” Garland v. True Temper Corporation, 354 F.Supp. 328, 330 (D.C.W.Va.1973). See also, Ray v. Oklahoma Furniture Mfg. Co., 170 Okl. 414, 40 P.2d 663 (1935); Savannah Bank & Trust Co. v. Meldrim, 195 Ga. 765, 25 S.E.2d 567 (1943); Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576 (1928). While indicating that the authorities are not in complete agreement, it is said in 54 C.J.S. Limitations of Actions § 386, p. 523 that
“ * * * in a majority of jurisdictions it is a rule that the party pleading the statute has the burden of proof, that is, the burden of proving that the cause of action accrued more than the statutory time before the commencement of the action.”
This court does not seem to have passed specifically on where the burden of proof lies in such cases, but a good many years ago it said that the defense of limitations , “becomes available on demurrer only when the petition shows affirmatively that the statutory period has elapsed before the action was commenced.” Marks v. Board of Com’rs of Uinta County, 11 Wyo. 488, 493, 72 P. 894 (1903). Rule 8(c), W.R.C.P. treats the statute as an affirmative defense. In First Nat. Bank of Morrill v. Ford, 30 Wyo. 110, 121, 216 P. 691, 31 A.L.R. 1441 (1923), it is-said that the burden of proof is on the defendant “as to all affirmative defenses, whether they relate to the whole case or only- to certain issues in the case.”
Defendant does not plead the statute of limitations of any particular state, and claims only that the action is barred by the provisions of our borrowing statute, § 1-3-117, W.S.1977. In this court he relies on the District of Columbia three-year statute. I would hold that statute inapplicable on the basis already discussed, and since he has shown no other statute which governs and has not shown that the statutes of all possible places of wrong have run, he has failed in his burden. From this, it follows that the action should not be dismissed.
While other errors have been assigned by defendant, they have not been discussed by the majority and there is no point in my considering them. However, in order to indicate that this dissent has not been just an idle joust with the statute of limitations issue, I would add that while I find some merit in some of the propositions advanced for reversal, I find nothing which would result in direction of the entry of judgment for the defendant.
. It is said in the VD Book by Chiappa and Forish, in question and answer form, that “a man’s chances of catching gonorrhea, when exposed to someone who has it are from one in five to one in twenty for each exposure. A woman’s chances probably are closer to one in two.” I do not find in the record anything concerning sanitary precautions that might have been taken by either of the parties.
. Sexual acts occurred in Virginia, New York, Pennsylvania, Iowa, Nebraska, and again in New York.
. The parties first had sexual contact in Virginia on the night of April 4-5, and had their last contact in New York on the night of April 21-22. That is the 18-day period to which I refer.
. In the book, Venereal Disease, 3d Ed., by King and Nicol, it is said that the incubation period may vary from two to ten days, but that in most cases it is five days or less. Control of Communicable Diseases in Men, 11th Ed., gives the incubation period as “3 to 4 days, sometimes 9 days or longer.” In Ch. 19, Practice of Medicine, Vol. Ill, it is said that “the incubation period may be prolonged, but approximately 95% of patients will develop symptoms within 2 weeks.”
.I would consider the case at bar a perfect example of the principle set forth in § 377, Restatement of Conflict of Laws, mentioned in Justice Thomas’s concurring opinion that when a person causes another “ ‘to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.’ ” The illustration of a person sending poison to another person in another state, who there takes it, then in the course of a trip becomes ill in a second state and dies in a third, is quite pertinent to our problem. Here the poison is administered in some state that we do not know, and takes effect in either that state or another that we do not know. Nevertheless, the place of wrong is where the poison takes effect within the body. In our case, the poison could have been administered in Nebraska and taken effect in Wyoming.
. Shaw v. Rogers and Rogers, 117 Wash. 161, 200 P. 1090 (1921).