Foos v. Steinberg
| Decision Date | 05 June 1967 |
| Docket Number | No. 338,338 |
| Parties | Anna L. FOOS et vir v. Murray STEINBERG. |
| Court | Maryland Court of Appeals |
Harry Goldman, Jr., Baltimore (Marshall & Marshall, Baltimore, on the brief), for appellants.
E. Clinton Bamberger, Jr., Baltimore (Browne L. Kooken, Baltimore, on the brief), for appellee.
Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.
On November 27, 1962, appellants, Anna L. Foos, et vir, filed suit in the Superior Court of Baltimore City against appellee Doctor Murray Steinberg, alleging medical malpractice. On January 3, 1963, appellants, pursuant to an order of court, filed an amended declaration which was the same as the original declaration except that it corrected the appellee's name and address. The acts of malpractice were alleged to have occurred when the appellee failed to remove a surgical sponge from appellant's vaginal cavity following an operation in April of 1959, to repair a rectovaginal fistula. In November, 1959, a corrective operation was performed and according to the amended declaration appellant remained under appellee's care until March, 1960.
On January 26, 1965, the court struck certain of the appellee's preliminary motions and on February 15, 1965, appellee demurred to the amended declaration. The demurrer attempted to raise the statute of limitations as a bar to the appellants' suit. Thereafter, on April 15, 1965, the appellee withdrew his demurrer and filed a plea to the amended declaration, raising specially limitations. On April 20, 1965, appellants' moved to strike the special plea of limitations on the ground that it was not filed within the time allotted by the Maryland Rules. Appellants' motion to strike was denied by Chief Judge Manley.
Appellee moved for a summary judgment on September 22, 1965. A hearing was held on the motion, and on July 11, 1966, appellee was granted summary judgment; Judge O'Donnell finding the appellants' claims to be barred by the statute of limitations.
In reversing the lower court we need go no further than to hold that the appellee's plea of limitations was not filed within the time contemplated by the Maryland Rules and thus should have been stricken pursuant to Rule 322. Rule 342 provides that a plea of limitations must be specially pleaded in both actions ex contractu (342 c 1(d)) and ex delicto (342 c 2(a)) and further provides that the 'plea of limitations must be filed within the time required by Rule 307 (Time for Defendant's Initial Pleading).' Rule 342 d 2. Rule 307 a 1 provides that the defendant has fifteen days after the day of return to file his initial pleading; however, Rule 309 a provides that where 'a motion, demurrer, * * * or other pleading requiring a ruling by the court * * * is filed, the time for pleading, including a plea of limitations, * * * shall be enlarged, without special order, to fifteen days after * * * disposition by the court of such motion * * *.'
In the case at bar, the appellee first attempted to raise limitations by demurrer, which was improper. Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). In any event the demurrer was withdrawn on April 15, 1965, and on the same date appellee specially pleaded limitations. The plea came too late, for pursuant to Rules 342 d 2, 307 a 1 and 307 a the appellee had only fifteen days after January 26, 1965-the date the court disposed of certain of appellee's preliminary motions.
The plea of limitations is not looked upon favorably by the courts and accordingly the rules governing it are to be strictly construed....
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Waddell v. Kirkpatrick
...6 results in the waiver of limitations, which permits the plaintiff to proceed with the trial of his or her case. Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79, 80 (1967); Foard v. Snider, 205 Md. 435, 451, 109 A.2d 101, 108 (1954); Brooks v. State, 85 Md.App. 355, 363-65, 584 A.2d 82, 86-......
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Heron v. Strader
...results in the waiver of limitations, which permits the plaintiff to proceed with the trial of his or her case. Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79, 80 (1967); Foard v. Snider, 205 Md. 435, 451, 109 A.2d 101, 108 (1954); Brooks v. State, 85 Md.App. 355, 363-65, 584 A.2d 82, 86-87......
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Baker, Watts & Co. v. Miles & Stockbridge
...and should be sparingly granted. To support this contention appellant refers us to the Court of Appeals decision in Foos v. Steinberg, 247 Md. 35, 230 A.2d 79 (1967). In Foos, the trial court granted the defendant's motion for summary judgment because the plaintiff's claim was barred by the......
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Higginbotham v. Psc.
...have regarded limitations as not "denying the plaintiff's right of action, but only the exercise of the right," Foos v. Steinberg, 247 Md. 35, 38, 230 A.2d 79, 80 (1967). Accordingly, we have held that limitations is an affirmative defense that can be waived and that is waived unless raised......