Baker v. Hendrix

• Decision Date: 05 October 1943
• Docket Number: C. C. No. 667.
• Citation: 27 S.E.2d 275,126 W.Va. 37
• Parties: BAKER v. HENDRIX.
• Court: West Virginia Supreme Court

27 S.E.2d 275

126 W.Va. 37

BAKER v. HENDRIX.

C. C. No. 667.

Supreme Court of Appeals of West Virginia.

October 5, 1943

Charles G. Gain and E. L. Luttrell, both of Martinsburg, for plaintiff in error.

Emmert Rice & Hannis, of Martinsburg, for defendant in error.

RILEY President.

In this Action of trespass on the case, instituted in the Circuit Court of Berkeley County against N. S. Hendrix Naomi Chrisman Baker seeks to recover damages for an alleged malpractice. To defendant's plea of the statute of limitations that the alleged cause of action did not accrue within one year next before the commencement of the action plaintiff replied specially, alleging, in effect, lack of both knowledge and means thereof, of defendant's alleged wrongdoing, by reason of defendant's alleged fraud and concealment. The circuit court sustained the demurrer to plaintiff's replication and certified its ruling here.

According to the allegations of the declaration, defendant, a physician and surgeon practicing in the City of Martinsburg, on January 7, 1935, performed an appendectomy upon plaintiff, during which he failed to remove a sponge or gauze which defendant had intentionally placed there. Following her discharge from the hospital by defendant, who allegedly then knew that the sponge or gauze was in her abdomen, plaintiff continued to experience great physical pain and developed an enlargement of the abdomen. On January 9, 1942, a physician, other than defendant, operated upon plaintiff and discovered and removed the sponge or gauze. The gravamen of plaintiff's declaration is that having intentionally placed the sponge or gauze in the incision and having intentionally kept it there, defendant, "*** disregarding his relations and duties to this plaintiff, knowingly, wilfully and fraudulently concealed from plaintiff the presence of the aforesaid sponge or gauze, the presence of the large abscess so formed about said sponge or gauze and that he likewise knowingly, wilfully and fraudulently concealed from plaintiff, at the time she was in the aforesaid hospital and at the time she was discharged by said defendant from said hospital, the presence of said sponge or gauze and, in fact, from the date of the aforesaid operation until the 9th day of January, 1942, *** the said defendant, at all times, knowingly, wilfully and fraudulently concealed from plaintiff the presence of said sponge or gauze and the reason for the suffering resulting from its presence; ***", and about two years from the date of the operation, had defendant examine her, inquiring if her condition could have resulted from "what was done or not done at the time" of the appendectomy, but defendant told her that her "troubles were imaginary".

The replication to the plea of the statute of limitations, though repetitious of the allegations of the declaration, must be examined because the certificate of the trial court questions the propriety of sustaining a demurrer thereto. In the replication plaintiff, alleging that she had no knowledge or means thereof, of a right of action against defendant until January, 1942, avers that during all of the time from January 7, 1935, to January, 1942, she made diligent inquiries of defendant and other competent physicians for the purpose of informing herself as to the cause of her continuous suffering; that defendant, by intentional and deliberate fraud, perpetrated upon plaintiff, actively concealed from her the fact of the presence of the sponge in her body, thereby preventing her from acquiring the knowledge necessary to become informed of her right of action against defendant; and that it was not until after an operation in January, 1942, by a physician other than defendant, in the course of which the sponge or gauze was removed, that she learned of its presence in her body and of her right of action.

From the writ, made a part of the record by oyer, it appears that this action was instituted on June 11, 1942, within one year following the date upon which plaintiff alleges in her replication she first learned of the presence of the sponge or gauze in her body.

Being for personal injuries, this action does not survive. Under Code, 55-2-12, such action "shall be brought within one year next after the right to bring the same shall have accrued, and not after," and the period of limitation is not enlarged or the operation of the statute suspended in the absence of fraud or an affirmative act on the part of the wrongdoer which is intended to and does conceal the wrong. Scott v. Rinehart & Dennis Co., Inc., 116 W.Va. 319, pt 1 syl., 180 S.E. 276; Boyd v. Beebe, 64 W.Va. 216, pt. 2 syl., 61 S.E. 304, 17 L.R.A., N.S., 660; Thompson v. Whitaker Iron Co., 41 W.Va. 574, pt. 8 syl., 23 S.E. 795; Merchants' National Bank of West Virginia v. Spates, 41 W.Va. 27, 23 S.E. 681, 56 Am.St.Rep. 828 Mere silence by the guilty party is not...