Adams v. Ison

• Decision Date: 20 June 1952
• Citation: 249 S.W.2d 791
• Parties: ADAMS v. ISON.
• Court: United States State Supreme Court — District of Kentucky

Page 791

249 S.W.2d 791

ADAMS v. ISON.

Court of Appeals of Kentucky.

June 20, 1952.

Harry M. Caudill, Whitesburg, for appellant.

Emmett G. Fields, John D. W. Collins, Whitesburg, for appellee.

STANLEY, Commissioner.

This appeal concerns the application of the doctrine of estoppel to a plea of the statute of limitations in a malpractice action. A demurrer to the plea of estoppel was sustained. The plaintiff rested his case on that ruling and suffered its dismissal.

The petition, filed February 22, 1949, alleges that in March, 1929, he had pneumonia and was treated by the defendant, Ison, a physician and surgeon in Blackey. In the course of the treatment, a rubber tube about six inches long was inserted in plaintiff's right lung. Through the alleged negligence of the defendant, the tube was left in the lung after an operation by Dr. Ison. The petition continues:

'Plaintiff states that about ten days thereafter, and immediately upon his discovery of the defendant's wanton and negligent act, he remonstrated with defendant, asked him to perform an operation to remove the said tube, and told him that unless he did so he would sue him for damages caused thereby; that defendant assured him no harm or injury would be caused him by the retention of the tube in his lung; that defendant told him the rubber would be taken up and absorbed by and into his body and that, in his professional opinion, no ill or adverse effects would, or could, result to plaintiff as result thereof * * *.'

Plaintiff alleged he relied on the statements of the defendant and did not bring suit. On June 15, 1948, he suffered a lung hemorrhage. It was soon discovered that the tube had not been dissolved by natural processes and was the cause of the hemorrhage. His right lung was removed. Damages of $16,500 were asked.

Defendant's general and special demurrers were overruled, and he pleaded the statute of limitations. Demurrer to the plea was overruled. Plaintiff replied that he had relied on the false statements of the defendant and pleaded the tolling of the statute and estoppel, repeating the averments of the petition above quoted. A demurrer to the reply was sustained.

The statute of limitation in a malpractice action is one year. KRS 413.140(1)(e). But KRS 413.190(2) provides:

'When a cause of action mentioned in KRS 413.090 to 413.160 accrues against a resident of this state, and he by absconding or concealing himself or by any other indirect means obstructs the prosecution of the action, the time of the continuance of the absence from the state or obstruction shall not be computed as any part of the period within which the action shall be commenced.'

The 'other indirect means' of obstruction referred to must consist of some act or conduct which in point of fact misleads or deceives plaintiff and obstructs or prevents him from instituting his suit while he may do so. Reuff-Griffin Decorating Co. v. Wilkes, 173 Ky. 566, 191 S.W. 443, 444. The act or conduct must have been affirmatively fraudulent unless the fact represented was peculiarly within the knowledge of the wrongdoer or a fiduciary or trust relationship existed. Security Trust Co. v. Wilson, 307 Ky. 152, 210 S.W.2d 336.

The usual application is in a case where an injured employee was promised payment of expenses and for time lost or permanent employment or a satisfactory settlement if he would not sue. Chesapeake & Nashville Railway Co. v. Speakman, 114 Ky. 628, 71 S.W. 633, 24 Ky. Law Rep. 1449, 63 L.R.A. 193; Clover Splint Coal Co. v. Lorenz, 270 Ky. 676, 110 S.W.2d 457; L. & N. R. Co. v. Carter, 226 Ky. 561, 10 S.W.2d 1064.

The tolling statute has been on our books for many years, apparently coming from the mother state of Virginia. See Pickett v. Aglinsky, 4 Cir., 110 F.2d 628, 629, an interesting opinion by the eminent Judge Parker, construing a similar West Virginia statute. Such a statute is essentially a recognition in law of an equitable estoppel or estoppel in pais to prevent a fraudulent or inequitable resort to a plea of limitations. That such estoppel is applicable to preclude the defense of limitations in actions ex delicto in such instances or under such conditions is recognized in our cases cited above and by the great weight of authority. 53 C.J.S., Limitations of Actions, § 25; 34 Am.Jur., Limitations of Actions, Sec. 411; Notes, 74 A.L.R. 1318; 130 A.L.R. 10; 144 A.L.R. 215.

It may be added that though deception is involved, bad faith, evil design or an intent by the wrongdoer to deceive or mislead or defraud in the technical sense is not essential. Under some circumstances the terms of the statute, KRS 413.140(2) may be more favorable to the injured party than equitable estoppel. As the wrongdoer may be absent from the state without a design to prevent suit, it would seem the same rule should apply to the other provision of obstructing prosecution of the suit 'by any other indirect means.' Under either statutory or equitable estoppel, however, the representation, or act, intentional or otherwise, must hav been calculated to mislead or deceive and to induce inaction by the injured party. On the other hand, the representation or conduct must have been relied upon reasonably and in good faith and have resulted in prejudice from having refrained from commencing his action within the limitation period. 34 Am.Jur., Limitations of Actions, Sec. 412; Notes 130 A.L.R. 17, 49; 53 C.J.S., Limitations of Actions, § 25, p. 965.

It may be noted there is no allegation that the plaintiff in this case had been under continuous treatment of the defendant until the removal of the tube. See Notes, 74 A.L.R. 1322, 144 A.L.R. 227. There can be no contention that the cause of action accrued at the time of the alleged negligent act giving rise to the liability, which was when the doctor is alleged to have left the rubber tube in the body of the plaintiff and not when he discovered or could have discovered by the exercise of ordinary diligence that the tube had not been absorbed by bodily processes. Carter v. Harlan Hospital Association, 265 Ky. 452, 97 S.W.2d 9; 70 C.J.S., Physicians and Surgeons, § 60; Bryson v. Aven, 32 Ga.App. 721, 124 S.E. 553; Byers v. Bacon, 250 Pa. 564, 95 A. 711. However, in accord with the general principles stated above the statute of limitations is tolled where the physician by concealing the facts of liability, delayed or prevented suit. Then the statute begins to run only when the fraud or concealment is revealed or the facts discovered or should have been discovered by the exercise of reasonable diligence by the injured patient. Concealment cannot be assumed; there must have been an affirmative act. Brown v. Grimstead, 212 Mo.App. 533, 252 S.W. 973; Pickett v. Anglinsky, 4 Cir., 110 F.2d 628; 41 Am.Jur., Physicians and Surgeons, Sec. 123...