Schmucking v. Mayo

• Citation: 235 N.W. 633,183 Minn. 37
• Decision Date: 06 March 1931
• Docket Number: No. 28348.,28348.
• Parties: SCHMUCKING v. MAYO et al.
• Court: Supreme Court of Minnesota (US)

235 N.W. 633

183 Minn. 37

SCHMUCKING v. MAYO et al.

No. 28348.

Supreme Court of Minnesota.

March 6, 1931.

Appeal from District Court, Olmsted County; Karl Finkelnburg, Judge.

Action by Otto Schmucking against William J. Mayo and others, copartners doing business under the name and style of Mayo Clinic. From an order overruling their demurrer to the complaint, defendants appeal, trial court having certified the question involved to be important and doubtful.

Affirmed.

Briggs, Weyl & Briggs, of St. Paul, for appellants.

Allen & Allen, of Rochester, and Allen & Allen, of Fairmont, for respondent.

WILSON, C. J.

Defendants appealed from an order overruling their demurrer to the complaint, the trial court having certified the question involved to be important and doubtful.

The action is for malpractice. The statute of limitations requires such actions to be commenced within two years. Laws 1925, c. 113.

Plaintiff submitted to a goiter operation and claims a negligent cutting of a laryngeal nerve resulting in the loss of the power of speech. The merits of the claim are not before us. What we are to consider is as to whether plaintiff can get into court to try the case involved in his claim.

The effect of a defendant's fraudulent concealment of a cause of action against him in relation to the statute of limitations has produced much discussion in the law books, showing great disagreement. In substance the allegations of the complaint show the relation of physician and patient and allege the conduct on the part of defendants, which, if true, would constitute a fraudulent concealment of a cause of action against it in favor of but unknown to plaintiff.

The rule, which is supported by the numerical weight of authority, is that when a party against whom a cause of action exists in favor of another, by fraudulent concealment prevents such other from obtaining knowledge thereof, the statute of limitations will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence. This is the rule apart from any statute. In many cases the question of diligence will be one of fact.

In the presence of a fiduciary and confidential relation the fraud may more readily be perpetrated. The relation of physician and patient of itself begets confidence and reliance on the part of the patient. Groendal v. Westrate, 171 Mich. 92, 137 N. W. 87, Ann. Cas. 1914B, 906 and note.

In the absence of fraud, ignorance of the existence of the cause of action does not toll the statute of limitations. Weston v. Jones, 160 Minn. 32, 199 N. W. 431; 37 C. J. 969, § 350. This is upon the theory that ignorance is the result of want of diligence and the party cannot take advantage of his own fault. There is a real distinction between ignorance and concealment. The former is not the fault of the person liable; the latter is. It may be well to keep in mind that the statute does not run against actions for fraud until the fraud is discovered.

Many authorities supporting the rule as stated may be found in 37 C. J. 969, §§ 350, 362; 17 R. C. L. 852, §§ 213, 223. They include: Lieberman v. First Nat. Bank of Wilmington, 2 Pennewill (Del.) 416, 45 A. 901, 48 L. R. A. 514, 82 Am. St. Rep. 414; Herndon v. Lewis (Tenn. Ch. App.) 36 S. W. 953; Watts v. Mulliken's Estate, 95 Vt. 335, 115 A. 150; Bailey v. Glover, 21 Wall. 342, 22 L. Ed. 636; Rosenthal v. Walker, 111 U. S. 185, 4 S. Ct. 382, 28 L. Ed. 395; U. S. v. Diamond Coal & Coke Co., 255 U. S. 323, 41 S. Ct. 335, 65 L. Ed. 660; McFaddin, Wiess & Kyle Land Co. v. Texas Rice Land Co. (Tex. Civ. App.) 253 S. W. 916; Avery v. Cleary, 132 U. S. 604, 10 S. Ct. 220, 33 L. Ed. 469; Pearsall v. Smith, 149 U. S. 231, 13 S. Ct. 833, 37 L. Ed. 713; Appeal of Deake, 80 Me. 50, 12 A. 790; American Tobacco Co. v. People's Tobacco Co. (C. C. A.) 204 F. 58; Lewey v. H. C. Fricke Coke Co., 166 Pa. 536, 31 A. 261, 28 L. R. A. 283, 45 Am. St. Rep. 684; Phalen v. Clark, 19 Conn. 420, 50 Am. Dec. 253; Marshall v. Buchanan, 35 Cal. 264, 95 Am. Dec. 95; 60 Am. Dec. 511 note; Conditt v. Holden, 92 Ark. 618, 123 S. W. 765, 135 Am. St. Rep. 206; Mereness v. First National Bank, 112 Iowa, 11, 83 N. W. 711, 51 L. R. A. 410, 84 Am. St. Rep. 318; Shellenberger v. Ransom, 25 L. R. A. 564, note 567.

This court has not held to the contrary. Indeed, it is apparently recognized that fraudulent concealment is an element for consideration and perhaps it may be conservatively stated that some of the decisions of this court tend to support the rule as stated. Cock v. Van Etten, 12 Minn. 522 (Gil. 431); Mast v. Easton, 33 Minn. 161, 22 N. W. 253; First Nat. Bank v. Strait, 65 Minn. 162, 67 N. W. 987; Id., 71 Minn. 69, 73 N. W. 645; Weston v. Jones, 160 Minn. 32, 199 N. W. 431. See dissenting opinion in Wellner v. Eckstein, 105...