Bailey v. Clausen

• Decision Date: 20 December 1976
• Docket Number: No. 27192,27192
• Citation: 192 Colo. 297,557 P.2d 1207
• Parties: Jimmy G. BAILEY, Plaintiff-Appellant, v. Roger CLAUSEN et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1207

557 P.2d 1207

192 Colo. 297

Jimmy G. BAILEY, Plaintiff-Appellant, v. Roger CLAUSEN et al., Defendants-Appellees.

No. 27192.

Supreme Court of Colorado, En Banc.

Dec. 20, 1976.

Ronald A. Peterson, Colorado Springs, for plaintiff-appellant.

Kane, Donley & Wills, Jerry Alan Donley, Colorado Springs, for defendants-appellees.

DAY,* Justice.

This appeal challenges a judgment of dismissal of a personal injury action in the district court of El Paso County. The trial court ruled that the action, brought against three deputy sheriffs of El Paso County, was barred completely by a one- -year statute of limitations. C.R.S.1963, 87--1--3. ¹ We reverse.

Appellant (plaintiff below) was attending a riot-control class held for police officers, deputy sheriffs, and prospective deputy sheriffs. Two of the defendants-appellees, Taylor and Schaefer, both deputy sheriffs, were acting as instructors of the class. Defendant-appellee Clausen, a deputy sheriff, was also a student. In the course of class maneuvers, a service revolver worn by Clausen fell from his person and discharged as it hit the ground, seriously injuring appellant.

To the complaint the defendants filed a written motion for dismissal on the ground that the action was barred by the statute, which reads as follows:

'One year--sheriffs' and coroners' liabilities.--All actions against sheriffs and coroners upon any liability incurred by them by the doing of any act in their official capacity or by the omission of any official duty, except in relation to accounting to the county for fees earned or collected, and except for escapes, shall be brought within one year after the cause of action accrues, and not after that period.'

At the hearing on the motion, no testimony was presented. Contending that the statute of limitations is an affirmative defense, appellant objected to the court procedure and argued that a plea in bar by reason of a statute of limitations cannot be raised by a motion to dismiss. It was contended that evidence was available which would remove defendants from the statutory provisions, and that such evidence could properly be presented only on trial of the issue if raised in the answer. Whereupon, the trial court made the following statement:

'Well, I really can't actually rule as to an affirmative defense on a motion to dismiss unless I treat this as a motion for summary judgment.'

The court then by written order found that deputy sheriff Clausen 'was acting within the scope of his duties at the time of the accident,' that the statute of limitations is a complete defense to the lawsuit, and entered judgment for defendants.

We hold that it was error for the trial court to enter judgment in this action based solely upon argument of counsel on a motion to dismiss. Two other arguments are rejected but will be discussed.

I.

The appellant has persuasively argued that with the circumstances present in this case the court erred in deciding the applicability of the statute of limitations on a motion to dismiss.

It has been generally held in a number of cases that a statute of limitations, if relied upon, must be affirmatively set forth in an answer. 'A plea in bar by reason of the statute of limitations cannot be raised by motion to dismiss. It is a defense which may or may not be relied upon. If relied upon it must be pleaded as an affirmative defense. . . .' Fletcher v. C. & W. Ry., 141 Colo. 72, 347 P.2d 156 (1959). See also O'Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867 (1949); Smith v. Oil Co., 128 Colo. 80, 261 P.2d 149 (1953), and Knighton v. Howse, 167 Colo. 530, 448 P.2d 641 (1968). See also C.R.C.P. 12.

Appellees rely on the case of Cox v. Pearl Invest. Co., 168 Colo. 67, 450 P.2d 60 (1969). Such reliance is misplaced. Cox involved a release which had not been pled as an affirmative defense in the answer, but the merits were argued in a motion for summary judgment, without objection. We held that the objection to the court's consideration of the defense of release could not be raised for the first time in this court; that the plaintiff had not been prejudiced and that the court treated the defense as if it had been incorporated in the answer. In the case at bar, plaintiff objected to the court's consideration of the statute and urged that the issue should have been framed by answer. More importantly, prejudice to the plaintiff was demonstrated. There was no evidence before the court at the motion hearing as to the status of the deputies who were named as defendants. The record does not reflect whether they were regular or special deputies. The court ruled with no facts before it that the defendants were 'acting in the scope of their employment'; but there can be a difference between 'acting in the course of employment' and 'acting in an official capacity.' Evidence is indispensable in determining the official or non-official character of the deputies' actions at the riot-control class, both as instructors and as student. The nature of the duties of each could differ.

The statement by the court that it would treat the motion as asking for summary judgment did not meet the problem. A summary judgment is proper only where there is no genuine issue as to any material fact, which may be indicated by the pleadings, affidavits, depositions and/or admissions, and where the moving party is entitled to judgment as a matter of law. C.R.C.P. 6. Abrahamsen v. Mt'n States T & T, 177 Colo. 422, 494 P.2d 1287 (1972) and citations contained therein. This was not the posture of this case at the time the trial court entered summary judgment.

II.

Plaintiff has also challenged the statute as being unconstitutional special legislation. We find the statute valid.

The classification of occupations and professions for limitation or regulation is a matter for legislative determination. McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962). This court early upheld the validity of a provision for a one-year statute of limitations on damage suits arising out of official acts of sheriffs. In People v. Cramer, 15 Colo. 155, 25 P. 302 (1890), it was stated:

'The provision is evidently framed in the interest of the officers mentioned, and their official bondsmen. Its purpose is to prevent annoyance and injustice through the prosecution against them of stale demands predicated upon official neglect or other misconduct.'

In addition to this interpretation, a caution was added:

'This purpose is eminently wise; but, in our judgment, the statute should, if possible, be so construed as that, while the...