*1 Appellants, SMILE, Paul J. Mr. LAWSON, Respondent.
Sidney O.
No. 52183. Missouri,
Supreme Court of
En Banc.
Nov. 1968.
Rehearing, Denied Dec. Cady, City,
Elwyn Jr., L. Kаnsas Independence, appellants. for Robertson, Joplin, Malcolm L. spondent; Fleet, Joplin, Blanchard & Van of counsel.
STORCKMAN, Judge.
This is an action a wife and hus- her physician band in two counts surgeon performance in the an operation on the wife. first $300,000compensatory count seeks the wife $100,000 damages exemplary damages. *2 contemplated surgery recovery the hus- in that he failed to for the two is Count consortium; divulge the expenses injury loss of substantial risk to a and band’s patient $20,000 compensatory undergoing surgery, dam- that he prays he for represented exemplary damages. relatively The $50,000 surgery that was ages and nature, summary judgment minor in that no would be defendant’s motion for there aftereffects, the action that ground and she would never was sustained limi- two-year except know that for had been done was barred V.A.M.S., tations, small scar. The defendant made no effort RSMo defend- her nonsurgical was for the treat and rendered with standard plaintiffs de- methods included ant. contend the аdministration The antithyroid drugs fraudulent constituted and fendant’s conduct radioiodine. She running operation of the asserted that negligently which tolled was performed period. pertinent unskillfully The facts on in that de- limitation protect are estab- fendant failed which the issue must be decided each recurrent by allegations petition, laryngeal lished nerve and that defendant quests admissions, fraudulently in- for and answers to concealed the fact of such sur- terrogatories. gical divisional damagе Portions of the and did he not disclose that quota- irreparably damaged will he used herein without structures nervous operation. marks. during petition tion The further states that: knowledge, “Defendant had The appearing facts from the sources the means of knowledge, and concealed May Smile, mentioned are that Mrs. nerves, fact of this cutting of with the in- throat, suffering from sore consulted plaintiffs, tention that ignorant being osteopathic physician defendant who is an affairs, true state of wоuld desist from surgeon. upon physician prevailed The making filing claim or suit on account of to permit perform thyroid- her him Further, negligence. defendant’s ectomy operation per- on her. The assured Mrs. diffi- Smile that her 14, 1960, formed January and Mrs. culty only voice temporary Smile remained under defendant’s care time, over a period of further treat- without until treatment 1960. Fol- October ment, symptoms her disappear. lowing operation, Mrs. had a Smile representations reliance on such hoarse, rasping speech with no sound. cealment, plaintiffs making did from desist hospital, While she was she still suit, claim filing and desisted from asked the defendant this condition about seeking further medical attention for Mrs. nothing and he said it was and would clear time; up symptom he told her to her throat Smile’s clear hoarseness.” each time speaking. before moved She The initially, defendant contends under Joplin City from to Kansas on November holdings Tar, in Thatcher v. De 7, 1963, 1960. On November she went to that the statute lim- sрecialist City in Kansas and learned the first began time that both the itations 17, 1960, and left run on October laryngeal nerves, recurrent branches of the the date on which Mrs. Smile was last vagus, had been severed and her vocal defendant, treated plain- and that the paralyzed cords had been result of the tiffs’ causes of action are barred under § operation. physi- was treated She pertinent 516.140which insofar as reads as cians complaints for various other between * * years: follows: “Within twо All *. the date the defendant’s treatment ceased * * against physicians, actions surgeons and November filed suit 1963. She for damages error, malpractice, mis- August 4, take brought years shall be within two from alleged of, the date of the of neglect complained further the de- Smile * n ‡» misrepresented fendant the nature acts, improper light. come to the fraud and period plaintiffs contend independent equitable principle of use This the defendant because limitations was tolled the law limita- in the administration of cause of action fraudulently her concealed in Rev. shadowed forth response is tions somewhat her. The defendant’s St.1909, 1905, reading: not toll [now § 516.280] concealment does *3 concealing or any person, absconding by in the ‘If limitations running of the statute of act, pre- himself, any improper byor other statutory authority and absence of action, such the commencement of an vent brought themselves plaintiffs have not the time may commenced within they actiоn be have any exception in within such limited, of after the commencement herein committed “failed that defendant to show pre- have ceased to be such action shall any improper preventing the .commence- Rev.St.1909, 1889, vented.’ See section ment of this action”. the same idea where 516.120(5)] [now § for fraud.” expressed controlling actions provides: “If 516.280 Section person, by absconding concealing him deci previous The Yates case relied on act, prevent self, by any improper County Bragg, Shelby v. including sions action, the of an such action commencement 600, 601, 291, 135 36 Mo. S.W. herein be commenced within the time county by a also a suit for fees retained limited, after the of such commencement official, “But it stated: wherein this court prevented.” action shall have be ceased to so state, by in force is well settled this whether Williams, In Kauchick Mo., v. it, independent the of of statute or herewith, this concurrently decided of action a cause fraudulent concealment of applicable court has held that 516.280 is delay operation the statute of will of statutory period to the in mal limitations discovery of fraud. limitation until after practice We, therefore, this actions. rule in * * question *. The is whether state statutory authority case that 516.280is by defendant were such fraud ments made proposition that fraudulent concealment as delayed ulent concealments of the facts “improper of a cause action is an act” of discovery operation the statute until of which, established, if running will toll the question is whether of the truth. The of limitations under 516.140. The defend court, county county, agent, the or its ant’s contrary contention to the is denied. facts merely ignorant consti ignorance tuting the of action. Such The nature and kinds concealment that of suspend operation of will not running will toll the statutes of limita- of properly attributed to unless it can be in de- tions have been considered Missouri by the facts de of fraudulent cоncealment expected although might cisions Kessinger, Mo. v. fendant.” See also Siler questions infrequently. arise rather State App., [3], Womack 149S.W.2d 893 Yates, ex rel. 132 Bell v. S.W. Callaway County, S.W.2d v. 159 Kauchick, tolling cited involved 633 [7]. of in an action on limitations of a state bond a former treasurer fraudu- relating rule to the The Missouri hospital. explaining In the doctrine of as it a cause of action lent basis, fraudulent concealment and its tolling of of limitations affects the statutes stated, p. court 132 at “If there S.W. 674: ma- in a keeping decisions improper ‘any be fraudulent concealments— Limi- Am.Jur., jority See 34 states. preventing discovery the facts act’— 188; 231, p. tation of Actions § C.J.S. by constituting the cause the exer- 219-220; 206, pp. Limitations of Actions § diligence, then the statute does cise of due Limita- 80 A.L.R.2d Anno: Statute begin run the fraud is dis- until annotation Malpractice, p. 371. This tions— rule as fol- general covered, constituting page at states the facts pre- many jurisdictions the rule action, by “In concealed lows: cаuse of theretofore proof vails where the existence of cause of be entitled thereto as a assailable fraudulently action is concealed false law.” matter of representations made the defendant for appellate court, as well as the purpose, commencement court, sum trial must view the record on running post of the statute limitations is mary light favorable judgment most poned discovers, until the party against to the whom the exercise of rеasonable could have diligence E. Electric was rendered. O. Dorsch Co. discovered, that he a cause of action.” Co., Mo., Plaza S.W.2d Construction Dean McCleary Glenn A. in a in [2], light, an Viewed entitled, “Malpractice treatise Stat —When reasonably be from the ference could drawn Malprac ute Limitations Commences in in this case that the defendant knew record Actions”, published tice Law in 9 Missouri *4 laryngeal that he had severed Mrs. Smile’s pp. 103-104, Review at “But stated: where cords, thеreby paralyzing her vocal nerves by there is per fact by state intended his conduct and he son liable for the in so she from her fact ments conceal jured party prevented is learning claim had a or cause of justiciable period thereof the of limitations does not thereof, that his by him reason start run until the cause action is dis fraudulent. An act acts were is covered could have been discovered by belongs to or is characterized when through diligence. reasonаble The confi Fraud is defined as an instance or fraud. relationship physician dential between trickery in especially or deceit when patient imposes duty patient a to inform misrepresentation; of de volving an act any opera nature and character of International luding. Webster’s New Third which he performed patient, tion Dictionary. by and disclose injury inflicted his neg in ligence performance thereof.” See therefore, follows, that the sum 29 University also City of Kansas Lаw Re by mary show judgment record does not 95-97, at pages view and 33 Missouri Law proof was the defendant unassailable pages Review at Recent 204-207. mal judgment a. matter law. entitled practice decisions from other states in Mo., Company, B. Nutter Wood v. & James volving tolling statutes similar those of v. [2]; 416 638 Robinson S.W.2d Bench, Martinez, W.Va., [3]; Missouri are 148 Hundley v. S.W.2d Finke, Mo., Cooper [4 v. 158 S.E.2d ], Billings 164-166 - 6 trial erred [3, 4], the record the court On Mercy Idaho, v. Sisters 86 Idaho judg sustaining summary in the motion for P.2d [4, 5]. ment. Accordingly reversed The burden plaintiffs is on the remаnded. the cause prove the facts necessary finding a in their favor on the issue of fraudulent con
cealment of the facts
rise to the
giving
HOLMAN,
J., HENLEY and DON-
C.
Williams,
action.
Kauchick
Special
ANDERSON,
NELLY,
JJ-, and
Mo.,
summary judgment EAGER, J., rendered on issue concurs result and by jury triable or the court jury separate concurring opinion without curs in unless prevailing party by FINCH, is shown un- J. appeal only the sitting. The record on contains
SEILER, J., not
amended,
petition
request by defend-
(ap-
to plaintiffs
ant
for certain admissions
result).
FINCH,
Judge (concurring
parently unanswered),
interrogatories
plaintiffs
their an-
both
defendant to
allege that Mrs.
plaintiffs
In this action
thereto,
and defendant’s motion
swers
injuries
result
suffered
“as
direct
Smile
summary judgment. This
contains
record
person
battery
of the
committed on
absolutely
evidence
no
per-
negligent surgery
laryngeal nerves.
knew he had severed the
true, as the
formed
defendant.” It
petition alleges that defendant severed
recites,
petition
had knowl-
these
and that defendant
nerves
suffi-
failed to
alleges that defendant
also
knowledge, but these
edge
means of
or the
the nature
ciently
Mrs.
as to
inform
Smile
proof.
allegations,
are mere
no effort
surgery
and made
and risk
interrogatory
one
Smile stated
answer to
nоnsurgical
standard
to treat her with
inquired
difficul-
when she
about her
methods,
recovery on that basis is
but
ty
speaking,
it was
the defendant said
nothing to
sought.
allegations have
These
throat
time
nothing and to clear her
each
performed
surgery
do
whether
speaking, but that statement does
before
presented on
with the issue
negligently or
part,
not show
nor
his
appeal.
*5
inferring
ait
basis
that
the doctor
for
laryngeal
had cut the
nerves.
knew he
Although
plain-
I
that
incline to the view
interrogatory
other
оr answer shows
No
interrogatories,
con-
tiffs’ answers
when
to
Therefore,
it
to
knowledge.
I consider
the
plaintiffs’ petition,
sidered with
entitled
that the record
to conclude
be erroneous
motion
trial court to
defendant’s
sustain
submit to
appeal
here
is sufficient to
to
summary judgment,
and I dissented
jury
question
the
whether defendant
the
basis,
opinion
a divisional
that
have
I
had severed Mrs. Smile’s
knew that he
prin-
concur in
with the
concluded to
result
nerves,
that
intend-
laryngeal
cipal opinion.
theory
this оn
that
I do
the
from
plaintiff
to
or conceal facts
ed mislead
summary
perhaps
judgment
the
record does
might
at
trial she
possible
her.
It is
that
by
proof that
not show unassailable
defend-
evidence,
knowledge
produce
but
ant
entitled
as a matter of
was
from
nor can it
inferred
not shown
be
pro-
plaintiffs may be
law and that
able
the
before us.
record
the
evidence at
trial on
duce additional
merits.
herein,
a trial
In
with
connection
proof of actual
pointed
be
out that
should
portions
principal opin-
There are
knowledge
part
the defendant
agree
about
ion with
I do not
misrepresenta-
necessary before fraudulent
propose
doubts, and these I
which I have
V.A.M.S.,
tion under
RSMo
to discuss.
that defendant should
Proof
be found.
not know-
in
negligent
have known and was
place,
agree
In the
the
first
I do not
with
recog-
Actually, this is
ing is insufficient.
in
that “an
conclusion
the
in
v. Wil-
opinion Kauchick
nized in the
from
be drawn
reasonably
inference could
liams,
decided сoncur-
in
the record
this case
the defendant
that
court
rently
In
herewith.
knew that he had
Mrs.
severed
Smile’s
difficulty
said,
with
“Again the
c. 349:
thereby
laryngeal
paralyzing
nerves
her
is no
that there
position is
cords,
Mrs. Kauchick’s
vocal
that he intended
his-conduct
finding
Doctor
support the
evidence
her the
statements to conceal from
actually caused
what
justiciable
fact
had
claim or
did know
she
Williams
he relied
difficulty. He testified that
of action
reason
her
him
pelvic
that her
thereof,
X-rаy report
upon
that his
were fraudulent.”
acts
delivery.
permit vaginal
measurement would
ment of the action.
example, Hig
For
in
expert
testimony gins
Mrs.
medical
Co.,
Kauchick’s
v. Heine Boiler
328 Mo.
support
might
finding
565, 573,
that Doctor Wil- S.W.2d
the court said: “How
X-rays
ever,
upon
court,
liam’s reliance
Carp,
Davis
failure
686, 698,
to make
clinical measurement was not
required
167 S.W.
generally accepted
accord with
to interpret
‘by
medical
the meaning of the words
practice in the
time.
community
at
imprоper act,’
as used in section
However,
‘So,
would
establish
Rev.St.1919. We therein ruled:
Doctor
aware
had
“improper
Williams was
that he
act”
referred to
that,
telling
been
negligent and
must be one in the nature of a
fraud
Kauchick that
did not know what caused
prevent
the commencement
he
action, in
bring
order
difficulty,
endeavoring
her
act within the
he whs
” statute.’
negligence
ceal his
her
in order
avoid an action malpractice.” (Empha-
Maynard
v. Doe Run
Co.,
Lead
supplied).
sis
94, 99,
Mo.
S.W.
court said:
1334, R.S.1919,
“Section
suspends the run-
question necessarily
whether
ning
statute,
where, by
some im-
knowledge
defendant had actual
because
proper conduct,
prevent-
the defendant has
only then
guilty
could he be
ed the commencement of the action.
concealment which
could toll
might
claimed
under
516.280. The test is not whether
defendants,
conduct of
concealing
doctor had the means
him,
true state of
prevented
affairs from
negligent in
knowing.
his commencing
action,
rely
might
or hе
upon
equitable
doctrine that the statute
solely
rely
Plaintiffs
on 516.280to toll
would not run while fraudulent concealment
the statute of
I
agree
limitations.
*6
by defendant of the
that
plaintiff
fact
the
principal
conclusion of the
opinion (and
has a
prevents plaintiff
cause of action
with the same
conclusion reached
from ascertaining
rights. Whether the
his
Williams,
Kauchick
Mo.,
v.
435 S.W.2d
(Section
1334)
equitable
the
342, decided concurrently
that
herewith)
principle applies,
puts
it
the
in a
mattеr
applicable
516.280 is
malpractice
to
ac-
§
position
different
from
be
what would
if
justify
the
are
as
its
tions
facts
to
if
begin
the statute did not
to run until the
application.1 However,
agree-
I am not in
discovery of the
the
is
fraud.
If
action
ment
with the
insofar as
fraud,
upon
provided
founded
as
in the last
it seems
imply
to hold or
that mere silence
1317,
clause of
plaintiff
section
the
must
part
of
toll
defendant doctor would
discover the
(within
fraud
10
be-
years)
the statute of limitations on the basis of
forе
begins
run,
the statute
to
and it does
provisions
the
of 516.280.
§
not
party
matter whether the
de-
who has
What is now 516.280has been in our
§
frauded him
anything
prevent
does
his
to
long
a
particular
statutes
time. The
por- discovery or
hand,
not. On the other
if
tion thereof with which we are concerned the cause
upon
action
of
founded
has
court,
been construed
this
although
case,
the basis
the ignorance
fraud
of
not, so far
ascertain,
as can
in malprac-
I
a
rights
his
would not prevent the statute
of
tiсe
“improper
suit. The
to
act” referred
running. The statute would not be
from
therein has been held to be an act in the
case,
tolled in such
unless some act
nature of a
preventing
fraud
commence- party against whom he has his cause of
1.
Such
conclusion is advocated in an arti
1334,
2.
Rev.St.1919,
Section
referred to
cle
Liability
Frederick Davis entitled “Tort
quotation,
in the above
was the same as
present
and the Statutes
Limita
1959,
§
RSMo
V.A.M.S.
tion,”
Review, 171,
33 Missouri Law
205.
discovery rule
provide a
516.280 is to
discovering
his
prevented
has
§
knowledge on
(conditioned only
proof
added).
(Emphasis
facts.”
re-
although
part
doctor),
we
has held
This court also
cently
Forgrave,
held in
v.
Laughlin
act,
affirmative
upon must be some
relied
1968,
9,
308,
September
decided
S.W.2d
Run
Maynard
In
v. Doe
silence.
mere
316,
Barnett, Mo.,
v.
Yust
99,
c.
this
Co., supra,
Lead
265 S.W.
9,
legis-
September
decided
limita-
discussing
court, in
the statute
enacting
lature in
intended to
516.140
§
ignorance
tions,
“The mere
said:
dis-
malpractice
did leave
out of
cases
pаrty complaining,
silence of
It
516.100.
covery rule established in §
complained of,
amount
party
would not
hold
illogical
seems
to me for us to
Shelby Coun-
actionable concealment.”
elimi-
legislature
516.140
intended
§
ty Bragg,
v.
36 S.W.
Mo.
discovery
nate the
set
516.100
rule
out
§
court,
quoting
approval
with
and then to turn around and hold that
Carpenter,
Wood
U.S.
malpractice
is es-
discovery
cases
rule
“
by mere
L.Ed.
said:
‘Concealment
by 516.280.
tablished
enough.
some
is not
There must be
silence
to exclude
trick or cоntrivance intended
in a
It
be
one
confidential
”
suspicion
inquiry.’
prevent
duty
speak
lationship
to those with
relation-
whom he is shown to have such
petition
Plaintiffs’
claims affirmative
ship,
speak
and that
breaches
failure
misrepresentation.
If that
duty
gives
party
shown, including
evidence
however,
not,
based thereon.
does
defendant,
part
agree
I
express provisions
alter the
516.280
tolled.
statute of
limitations
thing
and make that
mean
one
However, plaintiffs
allege
also
mer-
something
doctor and
else as
ato
part
and claim that
mere silence on
chant or banker.
limi-
defendant would toll the statute of
principal
tations under
The
516.280.
opinion
principal
says
that Mis-
seems
hold that such silence
subject
souri rule on
is in accord
rela-
will toll the statute if a confidential
in majority'of
rule
I do
states.
tionship
de-
exists between
majority
not find that there
is a
rule
agree.
fendant. With this do not
I
mere
would cause
silence to toll limitations
where the action
one
*7
516.-
nothing
language
I find
§
A.L.R.2d,
a physician. In 80
Anno:
standard
prescribes a different
280 which
Malpractice, p.
Statute of Limitations —
says nothing
people. It
test for different
pointed
page
that,
it
“Some
is
out at
re-
occupy a confidential
those who
about
malpractice
apply
of the
to
ac-
authorities
those
do not. When
lationship and
who
affirmative
general
that an
tions
rule
a
prescribe
different
to
legislature desired
necessary
act is
an element of
as
conceal-
mal-
physicians
period of limitation
having
a
of action
the effect
ment of
they provided in
practice
than
cases
Subsequently,
tolling
limitations.”
specifically
so.
torts,
said
they
classes
hand,
page
it is stated: “On the other
special
provide
to
they
intended
If
had
other authorities take the view that because
and to
516.280
under
classifications
§
relationship
of the
trust
confidence
and
mere
one and
quire
acts as to
affirmative
pa-
a
existing
practitioner
his
between
and
and
other,
could
they
as to
silence
duty
tient and
corresponding
the former's
in such
us write
For
to
have said so.
to disclose
information
material
to
legislation.
judicial
provision
a
constitutes
latter, mere
and failure to
silence
disclose
patient
injury
fact of the
done
Furthermore,
mere silence
to hold
under
limitations
to him
the statute of
constitute fraudulent conceal-
will toll
ment of a cause
action for
gone
out that some
have
a
states
to more
as will toll the
limitations.”
statute of
liberalized version of the
thereto,
cealment
rule. With reference
principal
Reference also is made in the
said,
“Appel-
court then
toll I would that cases running out construing tolling require dili- plaintiff’s which interfered with the *8 Shelby rights gence plaintiff. alleged.” part must be Subsequently, on County page, Bragg, supra, same 1. c. the court S.W. said: “The fraud- concealment, ulent any, party if court said: “A avail Mar- cannot Doctor exception tinez the statute injury plaintiff’s himself of to the eye discovering where the means of the truth act, was the result positive of a power, mere within his not used.” silence.” “ say: The court went on to ‘There must In Billings, the court referred to various diligence, reasonable and the means of A.L.R. Annotations phi- and a change in effect, thing, are the same ” losophy in some recent pointed cases. knowledge itself.’