Gaddis v. Smith, A--11825

• Citation: 417 S.W.2d 577
• Decision Date: 05 July 1967
• Docket Number: No. A--11825,A--11825
• Parties: Dorothy GADDIS et vir, Petitioners, v. William C. SMITH et al., Respondents.
• Court: Supreme Court of Texas

Page 577

417 S.W.2d 577

Dorothy GADDIS et vir, Petitioners, v. William C. SMITH et al., Respondents.

No. A--11825.

Supreme Court of Texas.

July 5, 1967.

Rehearing Denied July 26, 1967.

Huff & Bowers, Robert W. Gauss, Lubbock, for petitioners.

Crenshaw, Dupree & Milam, Max C. Addison, Evans, Pharr, Trout & Jones, Charles B. Jones and David Hughes, Lubbock, for respondents.

HAMILTON, Justice.

This is a summary judgment case, wherein petitioners, a patient and her husband, sued respondents, two doctors, for damages allegedly resulting from leaving a surgical sponge inside the patient's body while performing a Caesarean Section.

Petitioner Dorothy Gaddis and her husband filed suit against respondents on February 21, 1964. They alleged that respondents performed the Caesarean Section upon Mrs. Gaddis on or about January 7, 1959. After a long period of increasing internal pain Mrs. Gaddis submitted to surgery in California in 1963, for what was believed to be a tumor. It was discovered that she did not have a tumor, but that a surgical sponge had been left inside her body, allegedly after the surgery in 1959. Petitioners further pled that Mrs. Gaddis had no knowledge, and no way of knowing, that a surgical sponge had been left inside her body until it was actually discovered in October of 1963.

Respondents answered, interposing the two-year statute of limitations as an affirmative defense. The trial court granted respondents' motion for summary judgment, and the Court of Civil Appeals affirmed, holding that the statute commenced to run from the date of the operation. 407 S.W.2d 873. We reverse the judgments of the trial court and Court of Civil Appeals and remand the cause for trial.

This case requires that we reexamine our holdings in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942), and Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App.1965, writ ref'd.). These cases hold that a cause of action accrues ¹ when the incision is closed, rather than when the negligent act is or should have been discovered.

In determining the proper event which starts the period of limitation running in an action of this nature, we are confronted with conflicting policies. The purpose of statutes of limitations is to compel the assertion of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rest is yet fresh in the minds of the parties or their witnesses. Harrison Machine Works v. Reigor, 64 Tex. 89 (1885). On the other hand, the nature of negligence actions of this type is such that it is often difficult, if not impossible, to discover that a foreign object has been left within the body within the statutory period of limitation.

A growing number of the courts of other states are embracing what has become known as the 'discovery rule' in this particular kind of case: 'Where a foreign substance is neligently left in a patient's body by a physician * * * and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the limitation period does not begin to run on said action until the patient learns of or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body.' Seitz v. Jones, 370 P.2d 300 (Okl.Sup.1961). The latest case to which our attention has been invited is Berry v. Branner, 421 P.2d 996 (Or.Sup.1966). There the court cited some fourteen jurisdictions which had held that the statute of limitations in malpractice cases commenced to run from discovery, or the time discovery could reasonably have been made. See, for example, billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); Johnson v. St. Patrick's Hospital, 417 P.2d 469 (Mont.Sup.1966); Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). This is but one of several theories by which the hardships created by a strict adherence to the rule announced in Carrell v. Denton have been alleviated. As stated in Billings v. Sisters of Mercy of Idaho, supra, 389 P.2d 232:

'Indeed, it appears that most jurisdictions, when faced with the set of facts we have presented herein would, on one theory or another, allow appellants to come into court and present their claims. To apply the label of 'general rule' to respondents' position and minority rule to the discovery doctrine is not only misleading but erroneous. If, however, it is necessary to apply labels, it appears that the so-called 'general rule' as stated in A.L.R. is in fact the minority rule.'

In 1942 this Court rejected the 'discovery rule' in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942). In 1965 we again approved this holding when we gave an unqualified refusal to the application for writ of error in Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App.1965). In Carrell this Court held that the patient's cause of action accrued at the time the incision in his body was closed, relying on Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888). Houston Water Works was an action to recover damage alleged to have resulted from injury to a house owned by plaintiff, allegedly caused by the cutting of an arch by the water works company in placing a water-pipe in the building. The arch was cut on July 24, 1884, and the action was not brought until September 21, 1887, but it was brought within two years after the settling of the corner of the house and cracking of the walls. The cutting of the arch was unknown to the plaintiff until inquiry was made as to the cause of injury to the walls. The Court held that the cause of action accrued when the arch was cut:

'When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury,--by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff's right,--then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.' 8 S.W. 37.

We do not understand the Houston Water Works case as holding that inability to know of the act of negligence will not under any circumstances postpone the running of the statute of limitations. That case is usually cited for the proposition that where an act causing damage to another's property is originally lawful, the cause of action does not accrue until the injury occurs; but where the act is originally unlawful, the cause of action accrues at the time of the act. See Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954); Stillwell v. City of Fort Worth, 140 Tex. 560, 169 S.W.2d 486 (1943); Parsons v. Uvalde Electric Light Co., 106 Tex. 212, 163 S.W. 1, L.R.A.1916 E, 960 (1914); Austin & N.W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484 (1891).

Texas Courts have not invariably ignored the inability to know of the existence of the cause of action in determining when such cause of action accrues. For example, a cause of action based on actionable fraud accrues when the fraud is discovered, or by the exercise of reasonable diligence should have been discovered. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876 (1962); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757 (1940); American Indemnity Co. v. Ernst & Ernst, 106 S.W.2d 763 (Tex.Civ.App.1937, writ ref'd) ; Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933). In an action for damage to plaintiff's land from water seepage, it has been held that the cause of action accrues when the injury becomes apparent, or should have been discovered by due diligence on the part of the party affected by it. Beck v. American Rio Grande Land & Irrigation Co., 39 S.W.2d 640 (Tex.Civ.App.1931, writ ref'd); Crawford v. Yeatts, 395 S.W.2d 413 (Tex.Civ.App.1965, writ ref'd n.r.e.); Geochemical Surveys v. Dietz, 340 S.W.2d 114 (Tex.Civ.App.1960, writ ref'd n.r.e.); Gulf Oil Corporation v. Alexander, 291 S.W.2d 792 (Tex.Civ.App.1956, writ ref'd n.r.e.).

Other jurisdictions have recognized the 'discovery rule' in certain analogous situations. A striking example is the case of Lewey v. H. C. Frick Coke Co., 166 Pa. 536, 31 A. 261, 28 L.R.A. 283 (1895). There the defendant by use of tunnels removed a quantity of coal from under the plaintiff's land. The coal removed was brought to the surface through the defendant's pits or openings on its own lands, and used or disposed of as its own. The plaintiff had no knowledge of the trespass upon him or the removal of his coal, and no means of knowledge within his reach. The statute of limitations would have barred his action if it began to run from the time of the taking; the action was timely filed if it ran from the date of discovery. The Court held that the statute of limitations commenced to run when the trespass was known or could have been known to the plaintiff:

'To require an owner, under such circumstances, to take notice of a trespass upon his underlying coal at the time it takes place, is to require an imposibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him. A result to absurd and so unjust ought not to be possible.' 31 A. 261, 263.

It was held in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), that a locomotive fireman's cause of action filed under the Federal Employers' Liability Act based on his contracting silicosis was not barred by the three year statute...