Guy v. SCHULDT

Dissenting Opinion

Bobbitt, J.

I dissent from the majority opinion in this case for the following reasons:

The complaint shows upon its face that the operation of which appellant complains was performed on March 25, 1937. His leg did not heal after the operation and appellee Baum continued to treat him until sometime in 1941. The complaint is silent as to any further treatment of plaintiff’s leg until November 10, 1952, when he employed a doctor in Fort Wayne, Indiana, who x-rayed the injured leg and discovered the foreign substance therein. Thus, it affirmatively appears that for a period of more than ten years, after the relationship of physician and patient had been terminated between appellant and appellees, appellant made no effort to ascertain the cause of the condition of his leg.

First: The statute upon which the appellees rely, Acts 1941, ch. 116, p. 328, being §2-627, Burns’ 1946 Replacement, is as follows:

“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 [2] years from the date of the act, omission or neglect complained of.”

Section 2-627, supra, specifically provides that the limitation period fixed therein commences to run at the *113 time of the wrongful act or omission, without exception. Cf: Indianapolis St. R. Co. v. Fearnaught (1907), 40 Ind. App. 333, 337 , 82 N. E. 102 . See also 144 A. L. R. Anno., p. 210.

I concur in the statement in the majority opinion that the exceptions contained in the . 1881 Act cannot be considered as exceptions to the 1941 Malpractice Act. The 1941 Act is clear and unambiguous. Burd v. McCullough (1954), 7 Cir., 217 F. 2d 159 .

The provisions of the above section are so clear, unambiguous and definite that this court is not at liberty to interpret, modify or evade its provisions. Sutherland Statutory Construction, Vol. 2, §4502, p. 316.

In order to sustain the conclusions reached by the majority opinion it is necessary to read into §2-627, supra, an exception based upon fraudulent concealment. This statute contains no expressed exception; and its strict application cannot be evaded by this court by reading into it exceptions not specifically granted by the Legislature. Burd v. McCullough, supra (1954), 7 Cir., 217 F. 2d 159 ; Mack v. Mendels (1928), 249 N. Y. 356 , 164 N. E. 248 , 61 A. L. R. 386; Taylor v. New York Cent. R. Co. (1945), 294 N. Y. 397 , 62 N. E. 2d 777 ; Powell v. Koehler (1894), 52 Ohio St. 102 , 39 N. E. 195 , 26 A. L. R. 480; 34 Am. Jur., Limitation of Actions, §42, p. 44. Cf: Squire v. Gardian Trust Co. (1947), 79 Ohio App. 371 , 72 N. E. 2d 137, 147 .

While in the earlier decisions courts freely implied exceptions to statutes of limitation, in later years they have been unwilling to add exceptions which the Legislature has not made. As a general rule, courts will not “read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem, even though the exception would *114 be an equitable one.” 34 Am. Jur., Limitation of Actions, §186, p. 150.

The rule in Indiana as stated by this court in DeMoss and Others v. Newton and Another (1869), 31 Ind. 219, 222 , is as follows:

“The act contains no exceptions, and the rule is, ‘that no exception can be claimed, unless expressly mentioned.’ ” See also: Waugh et al. v. Riley et al. (1879), 68 Ind. 482, 499 ; The Evansville, etc. Co. et al. v. Wins or, by Next Friend (1897), 148 Ind. 682, 689-690 , 48 N. E. 592 .

The Legislature may limit the time within which actions may be brought without making any exceptions whatever. Sherfey v. City of Brazil (1938), 213 Ind. 493, 508 , 13 N. E. 2d 568 .

In the case at bar there is no exception expressed in the statute. The will and intent of the Legislature are clearly expressed. It is not the province of this court to change it into what we deem to be a wiser provision; our duty is to declare and apply the statute as it is.

Second: “ ‘Where the limitation in a certain case is absolute, and there are no exceptions to the running of the statute, and the complaint shows, upon its face, that the action was commenced after the time limited, the question can be raised on demurrer.’ ” Roberts v. Smith (1905), 165 Ind. 414, 420 , 74 N. E. 894 . See also: Oolitic Stone Co. v. Ridge (1910), 174 Ind. 558, 566 , 91 N. E. 944 ; Lavene v. Friedrichs (1917), 186 Ind. 333, 338 , 115 N. E. 324 ; The Dorsey Machine Company v. McCaffrey (1894), 139 Ind. 545 , 38 N. E. 208 .

The complaint herein shows upon its face that the action was commenced more than two years from the date of the act or neglect of which the appellant complains. The limitation in §2-627, supra, is absolute and the Legislature made no provision for any exception, hence the question of limitation of the action herein *115 was properly raised by demurrer. Roberts v. Smith, supra (1905), 165 Ind. 414, 420 , 74 N. E. 894 ; Norris v. Grand Trunk, etc., R. Co. (1924), 81 Ind. App. 93 , 142 N. E. 417 .

Since there are no exceptions to the statute here, it affirmatively appears from the complaint herein that the cause does not come within any exception. Hence, a demurrer would also lie under the exception to the rule as stated in Charters v. Citizens Nat. Bank (1925), 84 Ind. App. 15, 19 , 145 N. E. 517 , as follows:

“The statute must be pleaded in bar of the action, unless it affirmatively appears from the complaint that the cause does not come within any of the exceptions.”

It is difficult to understand how any facts could be stated in a reply which would bring this case within an exception, when no exceptions exist.

Third: Even if an exception of fraudulent concealment were contained in the Act, a demurrer would be the proper procedure to raise the question of limitation under the facts as stated in the complaint herein.

The statutory exception for fraudulent concealment which is contained in the 1881 Act is limited to an affirmative act of concealment. There must be something more than mere silence — mere failure to speak out. State ex rel. Harrison, Trustee v. Osborn et al. (1896), 143 Ind. 671 , 42 N. E. 2d 921 ; Terry v. Davenport (1916), 185 Ind. 561, 576 , 112 N. E. 998 ; Jackson v. Jackson (1898), 149 Ind. 238 , 47 N. E. 963 ; Boyd v. Boyd (1867), 27 Ind. 429 .

The exception created by the majority opinion, while covering the same ground as the 1881 statute, goes further and allows for fraudulent concealment which consists of a mere failure to speak where such failure is in violation of a fiduiciary relationship. The complaint, on its face, negatives the application of this *116 type of “fraudulent concealment” exception to this case when it specifically alleges that the relationship of physician and patient ceased to exist between appellant and appellees sometime in 1941, and this action was not commenced until August 17,1954.

And whether the fraud be active or a failure to act in violation of a fiduciary duty, it has long been the law in this State that “ '. . . the delay which has occurred must be shown to be consistent with the requisite diligence.’ ” Stone, Administrator v. Brown (1888), 116 Ind. 78, 81 , 18 N. E. 392 . Here, according to the complaint, appellant waited eleven years after the relationship of doctor and patient had ceased before consulting another physician, even though “. . . plaintiff has been unable to hold any steady job because of frequent lay-offs necesitated by the condition of said leg, and has lost opportunities for advancement as well as loss of wages for times when the condition of said leg would not permit him to work. In addition, plaintiff has been put to great expense for bandages and other medications and has suffered great pain and anguish . . ..”

These facts affimatively show that the action herein does not come within such exception of fraudulent concealment, if any were present; hence a demurrer would lie to the question of limitation. Oolitic Stone Co. v. Ridge, supra (1910), 174 Ind. 558 , 91 N. E. 944 ; Roberts v. Smith, supra (1905), 165 Ind. 414 , 74 N. E. 894 ; The Dorsey Machine Company v. McCaffrey, supra (1894), 139 Ind. 545 , 38 N. E. 208 ; McCallam v. Pleasants, Admr. (1879), 67 Ind. 542, 544 ; Kent v. Parks (1879), 67 Ind. 53 ; Harlen v. Watson (1878), 63 Ind. 143, 152 ; Cravens v. Duncan (1876), 55 Ind. 347 ; Potter and Others v. Smith and Others (1871), 36 Ind. 231, 237 .

*117 In my judgment the majority opinion holds that equity has created an exception to the 1941 Act, based upon fraudulent concealment, which is broader than any exception contained in the 1881 Act. This court is without the power to create or presume exceptions in a statute where none are expressly provided by the Legislature in the Act itself.

Furthermore, the complaint herein affirmatively shows, on its face, that this cause does not even come within the exception which the majority opinion creates.

For the reasons above stated, I would affirm the judgment of the trial court.

Note. — Reported in 188 N. E. 2d 891 .