Proctor v. Schomberg

• Decision Date: 06 February 1953
• Parties: PROCTOR v. SCHOMBERG.
• Court: Florida Supreme Court

Page 68

63 So.2d 68

PROCTOR v. SCHOMBERG.

Supreme Court of Florida, Division A.

Feb. 6, 1953.

Rehearing Denied Feb. 23, 1953.

John C. Wynn, Miami, for appellant.

J. Lewis Hall, Tallahassee and M. Earl Baum, Miami, for appellee.

MATHEWS, Justice.

This was an action of a patient against a dentist alleging malpractice and breach of contract.

The appeal is from a summary judgment which also contained an order dismissing an amended complaint as amended.

The original complaint contained the following:

'1. On or about the month of November 1947 and prior and subsequent thereto the defendant, W. Worth Schomberg, was engaged in the practice of dentistry in Dade County, Florida, and while so engaged held himself out to the public as a dentist skilled in his profession, and by reason thereof on the date aforesaid the defendant was employed by the plaintiff, and by virtue of such employment did agree and undertake carefully and skillfully to attend as a dentist and render proper dental treatment and care to the plaintiff, Marjorie D. Proctor, to-wit: remove an impacted wisdom tooth. That said employment of the defendant included and comprehended all care and attention necessary and proper in the performance of such dental work and treatment of the plaintiff in respect thereto. That the defendant so carelessly and negligently did and performed the said dental work and treatment of the plaintiff in respect thereto that he left a piece of broken metal instrument or some other foreign substance unknown to the plaintiff in the area of the bone structure where the impacted wisdom tooth had been removed.

'2. That as a proximate result of defendant's said carelessness and negligence as aforesaid the plaintiff, Marjorie D. Proctor, has continuously endured great physical and mental pain and suffering, and plaintiff's nervous system has been thereby permanently injured and impaired, causing her to be nervous at all times. That all of plaintiff's said injuries are permanent, and she will continue in the future to endure great mental and physical pain and suffering and nervousness as aforesaid. That by reason of plaintiff's injuries as aforesaid she has expended divers sums of money for doctors, hospital bills, medicine, and other related expenses incidental to said injuries, and in the future will be required to make further expenditures for such purpose. That at the tie of plaintiff's injuries as aforesaid she was gainfully employed, and by reason of such injuries she will sustain future loss of earnings.'

The complaint was filed on the 2nd day of August, 1951. The appellee filed motion to dismiss on the ground that 'said complaint affirmatively shows that the alleged cause of action is barred by the statute of limitations.' The Court granted the motion to dismiss and allowed the appellant to file an amended complaint. In due course an amended complaint was filed which was also amended. A motion to dismiss the amended complaint as amended was then filed which contained the following ground:

'Because said amended complaint affirmatively shows that the alleged cause of action is barred by the statute of limitations.'

After notice and argument, the Court entered its final judgment based upon an order granting the motion to dismiss. In this final judgment and order there appears the following:

'2. That the motion to dismiss filed in said cause by the defendant to the amended complaint as amended filed in said cause by the plaintiff be and the same is hereby granted upon the ground that it affirmatively appears therefrom that this cause of action is barred by the statute of limitations, and said cause is hereby dismissed with prejudice and at the cost of plaintiff.'

This Court has long been committed to the doctrine that the statute of limitations is an affirmative defense and must be pleaded. It cannot be taken advantage of by a motion to dismiss. In our most recent case of Tuggle v. Maddox, Fla., 60 So.2d 158, 159, this Court, in an opinion by Mr. Justice Thomas, said:

'Another reason for considering the motion to strike as one to dismiss or in dismissing the cause on his own account, was the affirmative appearance that the claim was barred by the statute of limitations. This was a ground of the motion to strike but was not authorized as such by the rule. On the contrary it is specifically provided that the statute of limitations, when relied upon as a defense, shall be set forth affirmatively [30 F.S.A.Rules of Common Law]. Rule 9(d). This method was purposely adopted to obviate the necessity of the initial pleader's setting forth that the statute had been waived or tolled and to dispel any existing uncertainty in the law on the subject. If the statute is affirmatively pleaded and such waiver or tolling is considered by the plaintiff to have counteracted its effect he may present the matter by a reply under rule 8(a). Of course, being an affirmative defense, the defendant may waive the statute by ignoring it.'

In this case it was reversible error to dismiss the complaint and the amended complaint as amended on the ground that the same showed on its face that it was barred by the statute of limitations. If the appellee desired to take advantage of the statute of limitations, he should have pleaded the same as an affirmative defense and then if the appellant could show that the statute had been tolled or that there were facts which would constitute an exception to the statute, the appellant was privileged to file additional pleadings raising such questions.

This brings us to the second question presented on this appeal, namely, will the fraudulent concealment of an injury such as the injury in this case toll the running of the statute of limitations or constitute an exception to the statute thereby postponing the commencement of the running of the statute until discovery, or reasonable opportunity of discovery, by the owner of the...