Phillips v. Wood , 263 Or. 500 ( 1972 )

BRYSON, J.

This is a malpractice action in which plaintiff seeks to recover damages from defendant, an osteopathic physician. Most of the facts are not germane to the legal issues presented.

The action was filed September 15, 1970. The second amended complaint alleges defendant’s wrongful acts to have occurred in 1963; that treatment was discontinued in July, 1965; that on July 15,1970, plaintiff first discovered that certain medication dispensed by defendant to plaintiff and digested by her was a poisonous anticoagulent (sodium warfarin) and caused her alleged injuries.

Defendant’s amended answer affirmatively alleged that the “action is barred by the Statute of Limitations in that plaintiff did not commence her action for more than two years from the date that the alleged injury was first discovered or in the exercise of reasonable care could have been discovered and the complaint was not filed within seven years of the injury.” The plaintiff replied with a general denial.

The defendant moved the court to first hear, as a matter of law, the defense as to the running of the statute of limitations before plaintiff introduced evidence to prove the allegations of her complaint. The trial judge allowed the motion and heard testimony, sitting without a jury, and adjudged that the statute of limitations barred plaintiff’s claim and entered judgment for defendant. At the hearing on this issue, both parties were allowed to call witnesses, with the defendant proceeding first with the burden of proving the affirmative allegations in his answer.

The plaintiff appeals and assigns as error that the “court erred in ordering a ‘change in the order of proof’ ” and “in holding as a matter of law that the statute had run.”

ORS 12.110 (4) provided (Amended by Oregon Laws 1971, Chapter 473):

“ (4) An action to recover damages for injuries to the person arising from any medical * * * treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within seven years from the date of the treatment, omission or operation upon which the action is based.”

The plaintiff contends, and so urged the trial court at the time of trial, that she was entitled to a jury trial on whether the statute of limitations barred her recovery.

OES 17.215 provides:

“The order of proof shall be regulated by the sound discretion of the court. Ordinarily, the party beginning the case shall exhaust his evidence before the other begins.”

In Lang v. Hill, 226 Or 371, 360 P2d 316 (1961), the court took testimony, without a jury, on the question of whether the statute of limitations had run and determined as a matter of law that the statute had run and dismissed the case. This court reversed, holding that the plaintiff was entitled to a jury trial on the issue.

In Schlegel v. Doran, 260 Or 270, 490 P2d 163, 166 (1971), we expressly refused to follow Lang. Mr. Justice Holman for the majority stated:

“Our present holding, that defendant is not now entitled to a jury trial because he did not make out a case when he was forced to submit the matter to the court, is contrary to a holding of this court in Lang v. Hill, 226 Or 371, 378-79, 360 P2d 316 (1961). We believe that efficient judicial administration requires the matter not be sent back for a jury trial when defendant did not make out a ease justifying the relief he requested.” 260 Or at 275-76.

In this day, it is the duty of all courts to expedite the judicial process so long as litigants’ rights are not prejudiced. The trial court took a calculated risk. He stated:

“* * * [I]t would seem to me that if you tell me that we can finish this by noon today or thereabouts so far as determining these other questions so that the Court can tell as a matter of law whether the Statute has run we would be balancing a good expenditure of time against a long expenditure of time.”

The evidence proved as a matter of law that the statute of limitations had run. Plaintiff testified:

“Q And so you suspected then that he had given you an anti-coagulant type pill by mistake at that time ?

“A Yes, sir, and—

“Q And you told your lawyer that?

“A Yes, sir.

“Q Did you also write to the various people concerning that in 1967?

“A In 19671 did. I became suspicious again.”

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“Q Now, you say that you suspected that the headache pills given to you by Dr. Wood was the cause of your blood clotting problem?

“A Yes, sir.

“Q You complained about that to other people?

“A Prom 1967. Yes, sir.”

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“Q I ask you to refer to a letter you wrote to Dr. Reid on April 8, 1967. Would you read here to the Court?

“A ‘In April of 1963 he accidently [sic] gave me an anticoagulant by mistake for headache [sic] pills * * V Yes, I did write that letter and it was his actions that made me believe that he must have known.”

It would be a futile exercise of judicial process to send the case back for retrial before the court and the jury as the plaintiff conclusively testified that she discovered the alleged tortious acts of defendant more than two years prior to September 15, 1970, the date her complaint was filed. Plaintiff’s counsel does not suggest that there would be any different evidence. Both parties were given a full opportunity to call witnesses on the statute of limitations issue.

The trial court should exercise its power to alter the order of proof in a jury trial only in rare instances and for good and sufficient reason. However, we cannot say this is not such a case. The transcript discloses that the trial court was faced with the possibility of a protracted trial of approximately two weeks that might have been to no avail if the statute of limitations barred plaintiff from bringing her action. Cases in which this court has approved the trial court altering the order of proof are Highway Comm v. Superbilt Mfg. Co., 204 Or 393, 281 P2d 707 (1955); Highway Commission v. Kliks, 238 Or 281, 393 P2d 763 (1964); Pacific Ry. & Nav. Co. v. Elmore Packing Co., 60 Or 534, 120 P 389 (1912); ORS 17.215.

Affirmed.