Muller v. Thaut, 86-391

• Decision Date: 28 October 1988
• Docket Number: No. 86-391,86-391
• Citation: 230 Neb. 244,430 N.W.2d 884
• Parties: George R. MULLER, Personal Representative of the Estate of Amy Sue Muller, Deceased, Appellant, v. Harold THAUT, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 884

430 N.W.2d 884

230 Neb. 244

George R. MULLER, Personal Representative of the Estate of Amy Sue Muller, Deceased, Appellant, v. Harold THAUT, M.D., Appellee.

No. 86-391.

Supreme Court of Nebraska.

Oct. 28, 1988.

Syllabus by the Court

1. Statutes: Judicial Construction: Presumptions: Legislature: Intent. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of its intent.

2. Statutes: Legislature: Intent. In considering the meaning of a statute, this court will, if possible, discover the legislative intent from the language of the statute and give it effect. We will not read a statute as if open to construction as a matter of course.

3. Wrongful Death: Limitations of Actions. The 2-year limitation in Neb.Rev.Stat. § 30-810 (Reissue 1985) is a statute of limitations.

4. Physician and Patient: Fraud: Words and Phrases. A physician is under a duty to disclose material information to his patient, and failure to do so results in fraudulent concealment. "Material information" includes the cause of death of a patient.

5. Fraud: Limitations of Actions. One who wrongfully conceals a material fact necessary to the accrual of a cause of action against him, and such concealment causes the opposite party to delay the filing of suit, cannot avail himself of the statute of limitations as a defense.

6. Estoppel: Limitations of Actions. Estoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations.

7. Fraud: Actions. A party will be held to have discovered fraud when it is established that he was possessed of knowledge of facts from which it could be reasonably inferred, that is, inferred from facts which indicate the alleged fraud. Ordinarily, such an inquiry presents a mixed question of law and fact, and where it does not conclusively appear that the party had knowledge of facts of that nature, a complaint should not be dismissed on motion.

8. Estoppel. Equitable estoppel rests largely on the facts and circumstances of the particular case and will be applied where the wisdom and justice of the principle are founded upon equity, morality, and justice in accordance with good conscience, honesty, and reason. Under such circumstances, the doctrine subserves its true purpose as a practical, fair, and necessary rule of law.

9. Estoppel: Limitations of Actions. When the act or promise of one causes another to do or forbear to do something which he otherwise would have done, the other is estopped from taking advantage of the act or omission caused by his own act or promise. One cannot justly or equitably lull his adversary into a false sense of security, and thereby cause him to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his conduct as a defense to the action when brought.

10. Fraud: Limitations of Actions. The fraudulent concealment of a cause of action from the one to whom it belongs, by the one against whom it lies, constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action.

11. Fraud: Estoppel: Limitations of Actions: Wrongful Death. Fraudulent concealment, if proved by the plaintiff, estops the defendant from asserting the statute of limitations as a defense to a plaintiff's wrongful death action under Neb.Rev.Stat. § 30-810 (Reissue 1985).

12. Summary Judgment. A motion for summary judgment shall be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, and any inferences to be drawn therefrom, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

13. Summary Judgment: Appeal and Error. In reviewing a summary judgment, this court must take the view of the evidence most favorable to the party against whom the motion is directed and give that party the benefit of all favorable inferences which may be drawn from the evidence. Summary judgment is an extreme remedy to be awarded only when the issue is clear beyond all doubt.

William A. Wieland, of Healey, Wieland, Kluender, Atwood & Jacobs, Lincoln, for appellant.

Mark A. Christensen, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BURKHARD, District Judge.

BURKHARD, District Judge.

On October 17, 1985, George R. Muller, as personal representative of the estate of Amy Sue Muller, deceased, commenced a wrongful death action on behalf of the estate of Amy Sue Muller, his infant daughter, upon the allegations of professional negligence contained in his petition against the defendant, Harold Thaut, a physician. George Muller and Bonnie K. Muller are husband and wife and were the parents of Amy Sue. Plaintiff's first cause of action was for wrongful death, and plaintiff's second cause of action was for conscious pain and suffering sustained by Amy Sue prior to her death, and for funeral expenses. The plaintiff alleged that the defendant's negligence had caused the death of Amy Sue Muller following her birth on August 3, 1976, and further alleged that the action was not barred by the statute of limitations applicable to professional negligence actions or wrongful death actions.

Plaintiff alleged in his petition that by reason of defendant's negligence Amy Sue died 37 minutes after her birth on August 3, 1976. Plaintiff alleged that defendant advised the parents of Amy Sue that Amy Sue had been severely deformed, was not expected to live, and would have been retarded; that her lungs were congested; and that she died because of respiratory problems. Plaintiff alleged that following an August 4, 1976, autopsy on the body of Amy Sue, defendant advised the parents that the autopsy revealed that they need not worry about the possibility of defects in later children, but defendant did not further discuss the cause of death.

Plaintiff alleged that he and his wife relied upon the explanations and advice of the defendant as their family physician, sought no further information as to the death of Amy Sue, and did not see the written autopsy findings or the death certificate of Amy Sue.

Plaintiff alleged that in June of 1985, he and his wife were advised that there might be life insurance benefits payable by reason of Amy Sue's death and that the Mullers were advised to obtain a copy of the death certificate. The plaintiff alleged that on June 20, 1985, upon the Mullers' obtaining a copy of the death certificate signed by the defendant, they discovered defendant's statement thereon that the cause of death was "a subdural hemorrhage and a laceration of the falx cerebri and the left tentorium cerebelli," the same being traumatic injuries to Amy Sue.

Plaintiff alleged that the statutes of limitations on professional negligence and wrongful death had been tolled and had not imposed a limitation on the cause of action for wrongful death by reason of the fraudulent misrepresentation and concealment of the facts by the defendant as to the cause of death. Plaintiff alleged defendant was now estopped to invoke the provisions of the statutes of limitations to his benefit.

The defendant, in his amended answer to plaintiff's first cause of action, denied, among other things, any negligence on his part, and alleged that plaintiff's first cause of action was barred by the applicable statute of limitations.

Defendant filed his motion for partial summary judgment as to plaintiff's first cause of action, alleging that it was barred by the applicable statute of limitations. Plaintiff dismissed his second cause of action, and a hearing was held upon the defendant's motion for partial summary judgment on March 27, 1986.

On April 16, 1986, the district court entered its judgment finding that plaintiff's decedent died on August 3, 1976, that plaintiff instituted this action on October 17, 1985, that the action was barred by the provisions of Neb.Rev.Stat. § 30-810 (Reissue 1985), and that plaintiff's allegations of fraudulent misrepresentation or concealment were unavailing and the action was barred. Plaintiff's first and only remaining cause of action was dismissed, and plaintiff appealed to this court.

The plaintiff's assignments of error can be boiled down to one: The court erred in finding that plaintiff's action was barred by the 2-year statute of limitations contained in § 30-810. The plaintiff basically contends in that regard that the alleged fraudulent concealment by the defendant renders the wrongful death 2-year statute of limitations unavailable to the defendant.

This court has not previously addressed the issue raised in this appeal as to the effect on the 2-year limitation of a failure to discover a wrongful death cause of action because of fraudulent concealment by the alleged tort-feasor.

In an action for wrongful death brought under Neb.Rev.Stat. § 30-809 (Reissue 1985), § 30-810 provides: "Every such action ... shall be commenced within two years after the death of such person. It shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin."

The defendant relies strongly on Gengo v. Mardis, 103 Neb. 164, 170 N.W. 841 (1919). In Gengo, one John Butera came to his death in Omaha, Nebraska, on November 15, 1911, while employed as a workman on the Flatiron Building. Paul Gengo became administrator of Butera's estate and on December 5, 1913, as such administrator, filed an amended petition against John C. Mardis, doing business as the J.C. Mardis Company, charging Mardis with the wrongful death of Butera. The action was commenced under the wrongful death statute in existence at the time, which...