Childers v. Tauber

Birdsong, Judge,

dissenting.

I must respectfully dissent. It is my opinion that by the very nature of the pleadings, appellant has engineered her own downfall. In essence the complaint shows that on March 9, 1976, the defendant doctor performed a surgical operation for the removal of a stone and in the course thereof negligently left a sponge in the patient’s bladder. This negligence necessitated a second operation on July 21, 1976, during which the presence of the sponge was detected and removed. The complaint asserts that as a direct result of this negligence, pain and suffering, additional expense and ultimately death of the patient resulted. These facts are all verified by the appellant, plaintiff below. The record also shows that the complaint was filed on October 26, 1977. On its face therefore the pleadings show that the cause of action had its inception on March 9, 1976, when a sponge was negligently left in the body of the patient; the cause of action became known on July 21, 1976; and the cause of action based on such negligent act was filed on October 26, 1977. My learned brother and I are not in disagreement that this cause of action is subject to the period of limitations established in Ga. L. 1976, p. 1364, eff. July 1, 1976 (Code Ann. § 3-1103) which requires an action predicated upon a foreign object left in the body to be filed within one year after the negligent act is "discovered.” It is my conclusion, and one apparently accepted by my *162brother, that at least on its face, the verified pleadings show that the statute of limitations ran on July 21,1977. We differ only as to where we should proceed from that conclusion.

We deal with a judgment on the pleadings in this case. A judgment on the pleadings may be granted only if, on the facts as shown in the pleadings and admitted in the answer, the moving party is clearly entitled to judgment. 2A Moore’s Federal Practice § 12.15, p. 2342; Gulf America Fire &c. Co. v. Harper, 117 Ga. App. 356 (1) (160 SE2d 663). As I view the pleadings, both complaint and answer, the facts show that a cause of action was revealed (the first synonym of "revealed” in Webster’s Dictionary is "discovered”) on July 21, 1976, but complaint was not filed until October 26, 1977, over fifteen months later. These facts as pleaded by appellant standing alone clearly and conclusively show that the statute had run. There is nothing in the pleadings to show to the contrary.

My brother asserts, however, that we should apply the rule that pleadings should be construed most favorably toward the pleader and because there are conceivable facts upon the proof of which the appellant could recover, the trial court erred in dismissing the pleadings as being barred by the statute of limitations. These conceivable facts (which must be inferred) are that the plaintiff may not have become aware of the negligent acts of the doctor until some time which was within less than one year of the filing of the pleadings. There appear no such facts in the pleadings or admissions. We are not here concerned with the sufficiency or clarity of the pleadings to state a cause of action where "conceivable facts” can perfect a poorly pleaded complaint. Mitchell v. Dickey, 226 Ga. 218, 220 (173 SE2d 695). It is indisputable that a cause of action is alleged, and that no strained interpretation of the plainly stated pleadings is required. Rather, we are here faced with an appellant’s pleadings that shows upon its face without contradiction that a cause of action was "discovered” or revealed fifteen months before complaint was filed. This is all the applicable statute requires. In the answer to the complaint, the defendants plainly asserted the statute of limitations. Obviously, appellant believed herself to be *163within some exception to the statute. However, where one relies on an exception to the operation of the statute of limitations, he must clearly, plainly and distinctly plead facts which bring him within such exception. Shepherd v. Frasier, 223 Ga. 874, 876 (159 SE2d 58); Church of God v. Isaacs, 222 Ga. 243, 246 (149 SE2d 466); Wallace v. Eiselman, 219 Ga. 595 (134 SE2d 807). As was said in Houston v. Doe, 136 Ga. App. 583 (222 SE2d 131) by Judge Deen, at p. 585: "Appellant contends that there were issues of material fact because there might possibly be facts which would toll the statute of limitations and avoid the plea. But he alleged no such facts and raised no such issues. If he had such facts to allege he might have amended his complaint, served affidavits, or asked permission to reply. He did none of these things.” As in that case, I would conclude that the defendants have borne their burden by way of demonstrating the prima facie applicability of the affirmative defense of statute of limitations and that the burden shifted to the plaintiff to allege or prove such facts as would toll the statute. In the absence of such allegations or proof of exception, I would affirm the dismissal on the pleadings.

It is noted that there appears in the record a motion by the plaintiff (appellant) for a partial summary judgment limited to liability. Attached to that motion is an affidavit in which plaintiff asserts lack of knowledge until December, 1976. However, the trial court did not consider or rule upon the motion and no enumeration of error is raised as to that omission by the trial court. I do not know of any law or rule of practice and procedure that authorizes this court to examine the entire record and grant a new trial upon a ground of our own making and not upon a ground specified by the appellant. The duty of the appellate court is to correct errors alleged to have been made in the trial court and nothing more. Hess Oil &c. Co. v. Nash, 226 Ga. 706, 709 (177 SE2d 70); Finch v. State, 138 Ga. App. 668, 672 (226 SE2d 779).

I respectfully dissent. I am authorized to state that Chief Judge Bell and Presiding Judge Quillian join in this dissent.