dissenting.
Initially, I want to emphasize that I do not question the good faith of counsel for defendant nor the trial judge in requesting and allowing the motion to hear the defense of the statute of limitations as a matter of law without a jury. However, I cannot agree with the majority that plaintiff’s constitutional right to a trial by jury can be excused on the grounds of expediency and lack of prejudice.
The defendant affirmatively alleged in his answer that plaintiff did not commence her action for malpractice within two years from the date the injury *506was discovered or could have been discovered by the exercise of reasonable care. Plaintiff’s reply consisted of a general denial.
At this stage of the proceedings an issue of fact, not of law, was raised by the pleadings. Both parties were entitled to a jury trial on this issue as well as all other issues in the case as a matter of right under Article VII, Section 3, of our constitution.
The defendant convinced the trial judge that the trial would be shortened because his evidence would show a complete defense. The judge and one of the parties should not be able to force the other litigant into a denial of the right to present her case before a jury on the theory that the evidence will show a complete defense as a matter of law. If such procedure is permissible, then I see no reason why it cannot be followed in other cases where an issue of fact has been made by the pleadings, and the defense is a release, the statute of frauds, the statute of limitations, and questions related to the statute of limitations such as concealment, discovery of fraud, non-residence, or new promise to pay. Lang v. Hill, 226 Or 371, 360 P2d 316 (1961); Dixon et ux v. Schoonover et ux, 226 Or 443, 359 P2d 115, 360 P2d 274 (1961); Meridianal Co. v. Moeck, 121 Or 133, 253 P 525 (1927).
Also, I see no reason why the same procedure could not be followed in a personal injury case where one party convinces the trial judge before trial that he can establish liability or non-liability as a matter of law.
The majority attempts to justify the procedure followed in the instant case on the theory that the trial court was acting under OES 17.215, which gives *507discretion to the trial court to regulate the order of proof during a trial. It is perfectly obvious that the authority given the trial court to regulate the order of proof in a trial has no relationship to a party’s constitutional right to a jury trial in the first instance. If a court could deprive one party of a jury trial on this basis, it could do the same over the objections of both.
The majority also justifies the procedure followed on the basis that the court took a “calculated risk” and “it is the duty of all courts to expedite the judicial process so long as litigants’ rights are not prejudiced.” Expediting the judicial process is a worthy goal, but again it is perfectly obvious that it cannot be used to deprive a litigant of her right to a trial by jury. Moreover, it is very questionable whether a “calculated risk” taken by the trial court in hearing a separate defense without a jury would serve to expedite the trial of the case. Generally, the question of when the particular injury was discovered, or should have been discovered, is one of fact for the jury. Dilley v. Farmers Ins. Group, 250 Or 207, 441 P2d 594 (1968); Heise v. Pilot Rock Lbr. Co., 222 Or 78, 352 P2d 1072 (1960). It is entirely possible that the trial court would spend substantial time hearing the evidence only to conclude that a question of fact was presented. We all know that many cases present very close questions of whether one party or the other has presented sufficient facts to make out a ease for the jury. It seems to me that a court, after agreeing to hear an affirmative defense as a matter of law, might possibly be inclined in a close case, whether consciously or unconsciously, to decide the defense as a matter of law rather than start anew by calling in a jury.
Lastly, I cannot agree with the conclusion of *508the majority that plaintiff is not prejudiced by being deprived of her right to at least start out with a jury trial on the grounds that the evidence established that plaintiff’s claim was barred as a matter of law. The same argument was made to this court and rejected in Lang v. Hill, supra.
I would reverse.
McAllister, J. and Tongue, J., join in this dissent.