Guy v. Schuldt

Decision Date20 December 1956
Docket NumberNo. 29364,29364
Citation138 N.E.2d 891,236 Ind. 101
PartiesRichard GUY, Appellant, v. T. S. SCHULDT, J. R. Baum, Appellees.
CourtIndiana Supreme Court

Maxwell P. Smith, Richard D. Logan, Ft. Wayne, Miller, Nieter & Smith, Ft. Wayne, of counsel, for appellant.

Barrett, Barrett & McNagny, Ft. Wayne, Bowser & Bowser, Warsaw, George M. Bowser, for appellees.


The appellant brought this action against the appellees to recover damages for medical malpractice. The issue arises upon a demurrer filed by the appellees on the ground that appellant's claim was barred by the two year statute of limitations for malpractice. Acts 1941, ch. 116, § 1, p. 328, being § 2-627, Burns' 1946 Replacement. The court sustained the demurrer. The appellant refused to plead over, and judgment was entered accordingly.

The appellant alleges in his complaint in substance the following facts:

That the appellees-defendants as physicians and surgeons treated appellant from March 25, 1937 until an unstated date in 1941 for a fracture of his left leg; that the appellees in the treatment of appellant's leg, negligently broke off a bit of the drill used in the operation, leaving a portion of the metal in the appellant's leg; that the appellees negligently failed to inform the appellant of the bit of metal remaining in his leg, and his leg failed to heal as a result of the alleged malpractice; that the piece of metal was discovered in appellant's leg on November 10, 1952 after he had employed another physician, who x-rayed appellant's leg; that upon an operation removing the portion of the broken drill appellant's leg healed; that the appellant relied upon the appellees' treatment and took no measure to ascertain the propriety thereof until thereafter. The complaint herein was filed in August, 1954. The court sustained the demurrer on the grounds that the complaint showed on its face that the following statute of limitations had run:

'No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two years from the date of the act, omission or neglect complained of.'

Acts 1941, ch. 116, § 1, p. 328, being § 2-627, Burns' 1946 Replacement.

As a general rule a statute of limitations must be pleaded and treated as a defense and is not available by way of demurrer. Were the rule otherwise it would compel the plaintiff to anticipate and seek to avoid in his complaint a possible answer thereto. Anticipatory pleading is not encouraged since it tends to complicate the defining of the issues. Where there are exceptions to the statute of limitations, the fact that the complaint does not show affirmatively that the action is within such exceptions does not make the complaint fatally defective, and, therefore, subject to a demurrer under such statute. If the statute of limitations is pleaded in an answer the plaintiff may then by reply set up the exception.

State ex rel. Little v. Parsons, 1897, 147 Ind. 579, 47 N.E. 17;

Falley v. Gribling, 1891, 128 Ind. 110, 26 N.E. 794;

Shewalter v. Bergman, 1890, 123 Ind. 155, 23 N.E. 686;

Norris v. Grand Trunk, etc., r. Co., 1924, 81 Ind.App. 93, 142 N.E. 417;

Newsom v. Estate of Haythorn, 1955, 125 Ind.App. 276, 122 N.E.2d 149.

The appellee, however, in support of the trial court's action in sustaining a demurrer to the complaint, contends there are no exceptions to the particular statute of limitations for malpractice actions, and therefore the sustaining of a demurrer was proper since it would not cut off any reply to an answer setting up the limitation.

The appellant, on the other hand, urges that the special statute of limitations for malpractice is subject to certain exceptions, and in particular, that a fraudulent concealment by a defendant of a cause of action would toll the operation of a statute of limitations. In this connection the appellant cites Acts 1881 (Spec. Sess.), ch. 38, § 46, p. 240, being § 2-609, Burns' 1946 Replacement, which reads as follows:

'If any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation after the discovery of the cause of action.'

The question is, therefore, are there any exceptions to the particular statute of limitations for malpractice actions set forth above? We do not believe the Acts of 1881 passed nearly fifty years prior to the 1941 statute of limitations on malpractice can be considered an exception thereto. The latter act is a special act, and is absolute in its language. It is clear and unambiguous. It seems to us the Legislature would have stated it was subject to the exceptions listed in the Acts of 1881 if it had so intended.

Sherfey v. City of Brazil, 1938, 213 Ind. 493, 13 N.E.2d 568;

Allen v. Dovell, 1948, 193 Md. 359, 66 A.2d 795.

The appellees cite the case of Burd v. McCullough, 7 Cir., 1954, 217 F.2d 159 in support of this conclusion. That case held that the 1941 Act was not subject to an exception in favor of a minor which tolled the statute for a period of two years from the time he reached his majority. The case is somewhat weakened on this point by the Federal Rules of Procedure, 28 U.S.C.A. as set forth in Kincheloe v. Farmer, 7 Cir., 1954, 214 F.2d 604, certiorari denied 348 U.S. 920, 75 S.Ct. 306, 99 L.Ed. 721. Appellant further points out that the Burd v. McCullough, supra, case does not deal with fraudulent concealment as an exception to the statute of limitations; that there is a fundamental difference between the exception considered in the Burd case and a case where one fraudulently conceals a cause of action for such length of time that the period fixed by the statute has expired.

The appellant cites the cases of Schmucking v. Mayo, 1931, 183 Minn. 37, 235 N.W. 633, and Crossett Health Center v. Croswell, 1953, 221 Ark. 874, 256 S.W.2d 548. In the latter case the court had before it a statute similar to the Indiana Act of 1941 which limited the commencement of an action for malpractice to two years from the 'date of the wrongful act complained of, and no other time.' Ark.Stats. § 37-205. The court, nevertheless, held that fraudulent concealment was an exception thereto, implied by the law, and would toll the statute. In the case of Schmucking v. Mayo, supra, in considering the same kind of question, the court, on page 40 of 183 Minn. at page 634 of 235 N.W. said:

'If one's legal title to property is endangered by the fraud of another, the courts will give relief; and if the rights which one has to a legal remedy to establish such title be defeated, by a like fraud, is not the principle the same?'

Prior to the elimination of the procedural distinction between equity and law, it was possible to procure an injunction against the use of the statute of limitations as a bar to a suit at law where equitable grounds such as fraudulent concealment of a cause of action existed.

34 Am.Jur., Limitations of Actions, § 411, p. 323;

43 C.J.S., Injunctions, § 40(c), p. 482.

To avoid this circumlocution or mulitiplicity of action upon the elimination of the procedural differences between equity and law, the courts permitted the pleading of equitable actions and remedies as defenses in common law actions. Where equity, because of fraud, previously granted an injunction against the use of the statute of limitations in a law action, it raised an estoppel as a bar. This was based on the principle that one who practices deceit or fraud, and conceals material facts and thereby prevents the discovery of the wrong, should not be permitted to take advantage of his own deceit or concealment by asserting the statute of limitations. While a wrongdoer is concealing from an injured person his wrongful act, the law will not, through a statute of limitations, strip the injured party of his remedy against the wrongdoer.

34 Am.Jur., Limitations of Actions, § 231, p. 188;

34 Am.Jur., Limitations of Actions, § 424, p. 335.

It is established by the overwhelming weight of authority that equity will step in with its doctrine of estoppel to prevent an inequitable resort to the statute of limitations by one who has intentionally and fraudulently concealed a cause of action from a party for such length of time that the statute has run. Before the doctrine of estoppel may be used to bar the defendant's use of the statute of limitations, the fraud must be of such character as to prevent inquiry, or to elude investigation, or to mislead the party who claims the cause of action.

'The rule that fraudulent concealment will prevent the running of the statute of limitations has been held applicable in actions by clients for the misappropriation of moneys collected, by patients against physicians for malpractice, for the conversion of personal property, by an owner for the recovery of lost or stolen property, to recover for the unlawful underground mining of ore belonging to another, against the liability of promoters of a corporation to account to the corporation for illegal acts or profits, by a chattel mortgagee for the fraudulent concealment and removal of the property, by a shipper to recover for unjust discrimination by a common carrier, and in other particular actions.' 34 Am.Jur., Limitations of Actions, § 231, p. 189. Mescall v. W. T. Grant Co., 7 Cir., 1943, 133 F.2d 209, certiorari denied 319 U.S. 759, 63 S.Ct. 1176, 87 L.Ed. 1711; Hutchens v. Hutchens, 1950, 120 Ind.App. 192, 91 N.E.2d 182.

Fraud may consist of intentional deception, relied upon by another which induces him to part with property or surrender a legal right such as a cause of action. We have held in this state that obtaining a formal release of a cause of action through fraud and...

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    ...remained silent. The court held that such allegations, if true, were sufficient to toll the statute of limitations. In Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956), metal was left in plaintiff's leg. No allegations of fraud were contained in the complaint. Nevertheless, the court ref......
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