Duke v. Housen

• Decision Date: 12 January 1979
• Docket Number: No. 4811,4811
• Citation: 589 P.2d 334
• Parties: "Pony" DUKE, Appellant (Defendant below), v. Margaret HOUSEN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 334

589 P.2d 334

"Pony" DUKE, Appellant (Defendant below), v. Margaret HOUSEN, Appellee (Plaintiff below).

No. 4811.

Supreme Court of Wyoming.

Jan. 12, 1979.

Robert A. Gish, Basin, and R. R. Bostwick, Casper, signed the briefs. R. R. Bostwick, Casper, appeared in oral argument on behalf of appellant.

G. L. Spence, Casper, signed the briefs and appeared in oral argument on behalf of appellee.

Before RAPER, C. J., and GUTHRIE, ^* McCLINTOCK and THOMAS, JJ., and ARMSTRONG, D. J., Retired.

RAPER, Chief Justice.

In the appeal now before the court, appellant-defendant challenges the jury verdict and district court judgment entered against him awarding to appellee-plaintiff, based upon defendant's alleged grossly negligent infection of plaintiff with venereal disease, compensatory and punitive damages in the sum of $1,300,000. Through this appellate challenge, defendant raises the following questions:

1. Is the action barred by a statute of limitations?

2. Are the damages excessive?

3. Is the defense of assumption of risk or other defense a bar to plaintiff's recovery as a matter of law?

4. Was there reversible error in the admission of the testimony of Janet Woodenlegs?

5. Were the instructions on punitive damages improper?

6. Was there plain and fundamental error?

For the reasons stated in detail herein, we shall reverse on the ground that the action is barred by the statute of limitations and not consider the other issues.

In early April, 1970, plaintiff was living, working, and going to college part-time in the Washington, D.C. area. On April 4 of that year she was introduced by her brother to defendant; and on the same night and early morning of April 5, following dinner and dancing plus moderate drinking, engaged in sexual intercourse with defendant in the front seat of his pickup truck. On April 8th, at least partially in response to defendant's sudden and convincing professions of love and desire to marry, plaintiff met defendant at the LaGuardia airport in New York and subsequently traveled by truck with him from New York to Denver, Colorado, engaging on and off in acts of sexual intercourse with defendant along the way. Upon reaching Denver, defendant, having lost interest in plaintiff, lodged her in a local hotel and left for his home in Meeteetse, Wyoming. Plaintiff, after contacting her brother and waiting for him to arrive, subsequently traveled to Meeteetse and confronted defendant concerning his behavior. As a result, it was agreed that defendant would accompany plaintiff and her brother back to Washington, D.C. and apologize to the family; yet after arriving in Washington and discussing the situation with her family, plaintiff for some reason which is neither totally clear nor probably capable of elucidation, accompanied the defendant to New York, there occupying a hotel room together and engaged once more in sexual intercourse with him. Finally, on the morning of April 21, 1970, defendant broke off his relationship with the plaintiff and informed her for the first time that he had venereal disease, gonorrhea, and that now she probably had it too.

At trial, through the presentation of voluminous testimony by both parties, it was established that at some time prior to March 22, 1970, defendant had become aware that he was probably infected with venereal disease for on that day he visited a doctor in Dallas, Texas, complaining of pain and a urethral discharge. In response, the examining physician took a sample of the discharge for testing and administered a large dosage of fast-acting penicillin, telling defendant to return the next day for the test results. When defendant returned on March 23, 1970, the test results for gonorrhea having been found positive, a larger dose of a longer-acting penicillin was administered and defendant was advised to see his own doctor for further treatment. Defendant then left by plane for New York, arriving the same day, March 23, where immediately upon arrival he contacted his own physician, who after an external examination, stated that he could find no "clinical evidence of gonorrhea" defendant had no current urethral discharge. On the basis of the previous treatment and this current information, defendant asserted at trial that it was his belief that as of his first sexual contact with the plaintiff on the night of April 4-5, 1970, his infection with gonorrhea had been cured.

Plaintiff, after being told by defendant on April 21, 1970, That she had probably contracted gonorrhea from him and should see a doctor, left New York for Washington, D.C. and, the following day, April 22, 1970, visited her personal physician who through a smear test confirmed that gonorrhea was present. In response to medication, plaintiff's infection with what her physician described as a "classic case of asymptomatic gonorrhea" was arrested by May 14, 1970, but more serious problems were to develop. Beginning in January, 1973, plaintiff noticed a pain in her lower right side which by March, 1973, had become so severe and constant as to require medical attention. After various external medical tests provided negative results and antibiotic medication proved ineffective, major exploratory surgery was performed in July, 1973. As a result, plaintiff's physician found that because of the gonorrhea infection, and possibly other related secondary infections as well, scar tissue adhesions had formed within a number of areas of appellee's lower abdomen. He testified that although he had lysed (loosened or detached by surgical procedures) the adhesions, thus somewhat relieving temporarily the severe pain, because of the nature of the scar tissue involved, new adhesions would eventually form and the pain would very probably return again and continue in this cyclical manner for the remainder of plaintiff's life. He further advised that because of the scarring involved, plaintiff's ability to bear children had been greatly reduced.

This case is not the first lawsuit filed by the plaintiff against defendant. The record discloses that on April 5, 1971, a complaint was filed in a case entitled Margaret Housen v. Angier St. George Biddle Duke, Jr., Civil No. 8557, in the District Court, Fifth Judicial District, Park County, Wyoming, which recited the relationship between plaintiff and defendant with dates and events consistent with plaintiff's testimony in the instant case, including the following:

"(6) That the Plaintiff did thereafter learn that she had contracted from Defendant a venereal disease, as a result of which the Plaintiff was subjected to medical expense for the care and treatment thereof, together with great pain, suffering, disgrace and humiliation in the eyes of her family and friends.

"(7) That the Defendant, at the times and places aforesaid, and knowing that he was infected with a communicable venereal disease, did then and there negligently, carelessly, and with utter and wanton disregard for the rights of the Plaintiff, expose and transmit to the Plaintiff an infectious venereal disease.

"(8) That as a proximate result of the negligent and careless acts of the Defendant, as aforesaid, the Plaintiff has suffered damages, and will continue to suffer damages from her humiliation and disgrace as aforesaid, damages in the sum of $100,000.00.

"WHEREFORE plaintiff prays judgment against the defendant as follows:

"(a) For general damages for her medical expenses, pain, suffering, disgrace and humiliation in the sum of $100,000.00;

"(b) For punitive damages in the sum of $100,000.00;

"(c) For her costs incurred in this action; and

"(d) For such other and further relief as to the Court may seem just and proper."

That complaint is noticed by the trial judge in two of his orders. That case was later dismissed.

Plaintiff filed this new action on April 19, 1974, seeking hospital expenses, doctor's expenses, wage loss, future medical expense, as well as damages for pain and suffering, present and future. In addition, based on an allegation that defendant was guilty of gross negligence when he infected her with gonorrhea, plaintiff requested $1 million in exemplary damages. By interrogatory, the jury found that defendant had been infected with gonorrhea at the time of his relations with plaintiff between April 4 and April 21, 1970 ; ¹ and by verdict awarded plaintiff $300,000.00 in compensatory damages, and $1,000,000.00 in exemplary or punitive damages. Following denial of various posttrial motions, the appeal herein was filed.

By way of both the answer filed in response to plaintiff's complaint as well as by motions prior, during and after trial, defendant alleged and strongly argued that based upon applicable statutes and case law, plaintiff's cause of action had been barred by the passage of time and her complaint should therefore be dismissed. Rule 8(c), W.R.C.P. requires that the statute of limitations be specifically set forth as an affirmative defense. In response, the trial judge ruled that inasmuch as plaintiff's scar adhesions had not been discovered until a date much later than when the infection itself had occurred, the applicable time period for limitation of action purposes was to be computed only from discovery of the adhesions; and defendant's assertion was thus denied.

Statutes of limitation have long been a part of the jurisprudence of the United States, all its states and the State of Wyoming. They are pragmatic devices to save courts from stale claim litigation and spare citizens from having to defend when memories have faded, witnesses are unavailable by death or disappearance and evidence is lost. Statutes of limitation are arbitrary by their very nature and do not discriminate between the just and unjust claim. They are not judicially made but represent legislative and public policy controlling the right to litigate. Chase Securities Corporation v. Donaldson, 1945, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628; reh. den. 325 U.S. 896, 65 S.Ct. 1561, 89...