Davis v. Bonebrake

• Decision Date: 01 July 1957
• Docket Number: No. 17966,17966
• Citation: 135 Colo. 506,313 P.2d 982
• Parties: E. M. DAVIS and George K. Niehouse, Plaintiffs in Error, v. Velma M. BONEBRAKE, Defendant in Error.
• Court: Colorado Supreme Court

Page 982

313 P.2d 982

135 Colo. 506

E. M. DAVIS and George K. Niehouse, Plaintiffs in Error, v. Velma M. BONEBRAKE, Defendant in Error.

No. 17966.

Supreme Court of Colorado, En Banc.

July 1, 1957.

Rehearing Denied Aug. 12, 1957.

Wagner & Wyers, Denver, for plaintiffs in error.

Richard H. Shaw and Norman B. Smith, Denver, for defendant in error.

FRANTZ, Justice.

This is a malpractice action in which plaintiff obtained a favorable verdict against two doctors who seek reversal of the judgment entered thereon. According to the complaint, a surgical sponge or insoluble pack was left in plaintiff's abdomen in the performance of a hysterectomy on her on August 17, 1951. Since the case was tried and submitted to the jury on the first count, charging negligence, it becomes unnecessary to consider the second count, involving a claim based on breach of contract.

The complaint was filed on October 16, 1953. Later the first count was supplemented by a more definite statement of facts, after which defendants filed their answer containing two defenses, the first defense admitting the performance of the operation and otherwise denying the allegations of the complaint, and the second asserting the statute of limitations as a bar to the action.

At the conclusion of plaintiff's evidence the defendants moved for a 'judgment of dismissal' on the ground, among several, that the action was barred by the statute of limitations. Plaintiff asked for and was granted leave to file an amended complaint, adding as an element of her claim the charge of fraudulent concealment by defendants of the fact that a surgical sponge had been left in her abdomen, and her discovery thereof in October 1953. Pursuant to such leave an amended complaint was filed before defendants started their defensive proof.

At the conclusion of all the evidence, the defendants filed their motion for a directed verdict. Among the grounds urged for directed verdict was a renewal of the assertion that plaintiff's claim was barred by the statute of limitations. This motion was denied.

That plaintiff was allowed to file an amended complaint in the face of asserted surprise and prejudice to the defendants, and that the trial court ruled adversely to defendants' contentions anent the trady institution of suit, are said to be errors requiring reversal of the judgment.

After the complaint was filed, the defendants took the deposition of the plaintiff and of the witness Melvin R. Gray, who acted as the surgical nurse at the operation on August 17, 1951 and a later operation on September 5, 1951. From these depositions the defendants ascertained the circumstances upon which plaintiff relied, showing how she discovered the alleged cause of her injury. All the evidence was repeated before the jury without objection to its admission on the grounds of surprise.

In the course of the deposition the following questions and answers were made:

'Q. About what size was it, Mrs. Bonebrake? A. Well, I remembered that as it came up here, it would be something like this (witness indicating).

'Q. About the size of a partially opened fist? A. Yes.

'Q. What general confirmation [sic] did it have, or present on the skin area? A. Well, it seemed like--well, as I remember it--I told you I was very sick, and my abdomen of course was distended. And as I remembered I just remembered it as a sort of a kind of a squarish or sort or rectangular--I can't describe it just exactly. I just remembered that this was my first complaint that there was a lump there. There is something there.

* * *

* * *

'Q. Could you feel it? A. Yes, that is the way that it was (witness indicating)'

On cross-examination in the trial the following testimony was elicited from the plaintiff.

'Q. Now, you thought it was foreign object of some kind, didn't you, Mrs. Bonebrake? A. Well, I didn't think you could grow something just that fast, Mr. Wagner.

'Q. The answer would be 'yes, you did think it was a foreign object of some kind.' A. I don't remember of saying it was a foreign object. I mean, I didn't make acquisitions [sic] to anyone. I didn't call Dr. Davis and say 'Hey, you left something in me. You come and take it out,' because at that time I really had a lot of faith in Dr. Davis, or I wouldn't have gone to him.

'Q. But you believe that it was not something that was part of you, is that correct? A. Well, I felt--I mean--there was something there. That was my thought, Mr. Wagner.'

She further testified that she did not remember saying that a foreign object was left in her body; that she had no idea of what was the matter, but knew something was wrong; that a number of other doctors examined her; that she was excited at the time of the taking of the deposition and that she made some remark about scissors or a pack being left in her. It appears in her testimony that she questioned the doctors about what was ailing her, stating to them that 'something was wrong'; that she 'knew that they had to do something--that [she] did not know what or why.' She further testified that when she advised the doctors that she knew 'something was wrong,' they told her they would disclose at some future time the cause of her difficulties, and that they never made such disclosure. On two occasions she tried to ascertain from Gray what had taken place at the two operations, and for the first time learned that a surgical sponge, similar to those used in the August operation, was removed from her abdomen in the September operation. Gray revealed this fact to her at the second meeting.

As we view it, it was unnecessary to amend the complaint because the issue of fraudulent concealment was before the court in the state of the pleadings as made prior to the amended complaint. Rules of Civil Procedure, Rule 8(c) provides for the affirmative defense of the statute of limitations. Rule 7(a) provides for a complaint answer, and a reply to a counterclaim. It also makes provisions for cross-claims and answers thereto and for third party procedures, matters not involved here. It concludes as follows: 'No other pleading shall be allowed, except that the court may order a reply to any answer.' Rule 8(d) concludes: 'Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.' (Emphasis supplied.)

Since no reply was required under the Rules, the defendants were put on notice that any matter in avoidance of the defense of the statute of limitations would be deemed in issue before the court. Under the Code, it was proper to raise the inapplication of the statute of limitations by replication. It was said in Order of Railway Conductors v. Jones, 78 Colo. 80, 239 P. 882, 885:

'The defendants pleaded the six-year statute of limitations. The plaintiff replied that the defendants fraudulently concealed their unlawful action from him until 1920, when he discovered it and brought his suit. The defendants demurred to this replication and the demurrer was overruled. That is assigned for error, but we think there was no error. Bailey v. Glover, 21 Wall. 342, 22 L.Ed. 636; 25 Cyc. 1213, and cases cited.'

The plaintiff need not anticipate the assertion of the statute of limitations and therefore negate its effect in her complaint, for the defendants may waive such defense. 'The statute of limitations is not ground for motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b), Colo.Rules of Civil Procedure, since under Rule 8(c) that is a defense which must be set forth affirmatively by answer. Baker v. Sisk, D.C., 1 F.R.D. 232. Neither is it a basis for dismissal on motion on the ground that it appears from the complaint that the claim accrued more than six years before the commencement of the action in this state, for the reason that in the absence of an affirmative defense based on the statute such defense is waived, and the assertion or waiver of the defense can only be determined from the answer. Furthermore, even if pleaded, the running of the statute may have been tolled, and plaintiff in his complaint is not required to anticipate the defense.' Smith v. Kent Oil Co., 128 Colo. 80, 261 P.2d 149, 150. See O'Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867.

We hold that permission to file the amended complaint at the close of the plaintiff's evidence was not and could not be prejudicial to the defendants; the matter set forth therein in avoidance of the bar of the statute of limitations was already before the court, and hence nothing new was injected into the case. Nor could surprise be asserted in view of the revelations appearing in the deposition.

Defendants take the position that plaintiff knew of the presence of the sponge in her abdomen within a matter of days after her first operation, hinging their argument upon her testimony, as above outlined; therefore, they say, the suit was brought too late, and the trial court should have granted their motions 'for judgment of dismissal' and for directed verdict.

The answer to this is that different minds could have honestly drawn different conclusions from the testimony on this question; that the evidence viewed in its most favorable light in behalf of plaintiff was substantial, and warranted submission of the question to the jury under proper instructions. City of Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909; Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905.

But there is firmer ground upon which to sustain the action of the trial court. At best plaintiff's testimony as to the presence of a foreign body cannot arise above that of the conjecture of a non-observer of the event. The law which makes such testimony valueless and incompetent, and which at the same time establishes the value and competency of Gray's testimony, will now be considered.

Gray, who was the instrument nurse in the August and September operations, testified that in his opinion the substance removed from plaintiff...