Anderson v. Fred Wagner and Roy Anderson, Jr., Inc.

• Decision Date: 15 July 1981
• Docket Number: No. 52663,52663
• Parties: Shane ANDERSON, a Minor, by and through Brenda Anderson, his Mother and next Friend, and James Anderson and Brenda Anderson v. FRED WAGNER AND ROY ANDERSON, JR., INCORPORATED.
• Court: Mississippi Supreme Court

Page 320

402 So.2d 320

Shane ANDERSON, a Minor, by and through Brenda Anderson, his Mother and next Friend, and James Anderson and Brenda Anderson v. FRED WAGNER AND ROY ANDERSON, JR., INCORPORATED.

No. 52663.

Supreme Court of Mississippi.

July 15, 1981.

Rehearing Denied Sept. 2, 1981.

Neil W. White, Jr., Gulfport, for appellants.

William M. Rainey, White & Morse, James O. Dukes, Bryant & Stennis, Gulfport, for appellees.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

LEE, Justice, for the Court:

Shane Anderson, a minor, and his parents, James Anderson and Brenda Anderson, filed separate suits in the Second Circuit Court District of Harrison County, against Fred Wagner and Roy Anderson, Jr., Inc., for personal injuries sustained by Shane Anderson when he thrust his arm through a glass door while leaving Murphy Elementary School. The cases were consolidated, pleas in bar were filed by the defendants and sustained by the presiding judge, Honorable Kosta N. Vlahos. The Andersons appeal from the judgment of dismissal and assign the following error in the trial below:

The Circuit Court erred in sustaining the defendants' plea in bar in the case below, and in entering orders of dismissal and an order overruling the plaintiff's Motion to Reconsider, for the reason that Mississippi Code Annotated Section 15-1-41 (1972) is unconstitutional.

Appellant's declaration alleged that Shane Anderson's injuries were due to the negligence of appellees, who were the architect and contractor of the building, in that they failed to specify and install a door with safety glass or a safety material when they knew or should have foreseen the likelihood of injuries to students using the door. The parties agree that more than ten (10) years elapsed from the date of construction and acceptance of the Murphy Elementary School building until the time of the child's injury on March 3, 1978. Consequently, appellees' pleas in bar and the resulting judgment of dismissal were based on Mississippi Code Annotated Section 15-1-41 (1972), which follows:

"No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.

This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.

This limitation shall not apply to actions for wrongful death.

The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date."

Appellants contend that the statute is unconstitutional and violates the following sections of the Mississippi Constitution of 1890:

"All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." Art. 3, § 24, Miss.Const. 1890.

"No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted." Art. 4, § 87, Miss.Const. 1890.

In considering whether a statute is offensive to the Constitution, we recognize that, to be declared unconstitutional, a statute must appear unconstitutional beyond a reasonable doubt. Peterson v. State, 268 So.2d 335 (Miss.1972); Masonite Corp. v. State Oil & Gas Board, 240 So.2d 446 (Miss.1970). Persons attacking the constitutionality of a statute have the burden of showing clearly that it violates constitutional provisions. Carter v. Harrison County Election Comm'n., 183 So.2d 630 (Miss.1966); Board of Education v. State Educational Finance Comm'n., 243 Miss. 782, 138 So.2d 912 (1962).

In Mississippi State Tax Comm'n. v. Tennessee Gas Transmission Co., 239 Miss. 191, 116 So.2d 550 (1959) appeal dismissed, 364 U.S. 290, 81 S.Ct. 61, 5 L.Ed.2d 39 (1960), this Court said:

"The propriety, wisdom and expediency of (an) act is a question for the Legislature and not the courts. It will be presumed that the Legislature considered the effect of the statute, and that it acted with an intent to comply with constitutional provisions and a desire to be fair and equitable. (Citations omitted)." 239 Miss. at 198-199, 116 So.2d at 552.

Statutes similar to that here involved are commonly called statutes of repose because they relax the potential liability of possible defendants. Approximately forty-seven (47) states and the District of Columbia have enacted such statutes, and it has been noted that "(w)hile the statutes thus enacted are not uniform in content, the purpose for which they were enacted was uniformly to limit the time within which actions for deficiencies in the design, construction, and supervision of construction of improvements to real property, for which architects, engineers, and others in the construction industry were responsible, could be brought against such persons." 93 A.L.R.3d 1243, 1246, § 2(a) (1979).

Twenty-five (25) states have addressed the constitutionality of such statutes. Fifteen (15) of those states have upheld the statute ¹ while ten (10) have held it unconstitutional. ²

Appellants have digested the decisions in those ten states which struck statutes similar to ours and rely strongly on Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo.1980), a Wyoming case, wherein that state's high court held the statute void on the theory that it was not a statute of limitations but a grant of immunity from suit. As does the Mississippi statute, the Wyoming statute limited to ten (10) years the liability of persons involved in the design, planning, supervision, construction or supervision of construction. Phillips, supra, rested in large part on the decision and reasoning in Skinner v. Anderson, 38 Ill.2d 455, 431 N.E.2d 588 (1967), wherein the Illinois Supreme Court invalidated a similar statute as (1) arbitrarily insulating architects and contractors from liability while deleting other potential defendants in the same situation, (2) setting up irrational classifications, and (3) existing devoid of any reasonable legislative purpose. Other jurisdictions have relied upon Skinner in striking down their statutes.

Conversely, appellee relies upon and discusses to some extent cases from those fifteen states which have declined to accede to the constitutional challenge to their statutes. In Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), the Arkansas court said that the true issue in assembling such statutes (as ours) is whether it is fair and reasonable and an appropriate action by the legislature or whether it impinges and frustrates basic rights guaranteed by the constitution. Those statutes upholding the constitutionality of such statutes have held that they are legitimate exercises of the legislative power. In Joseph v. Burns, 260 Or. 493, 491 P.2d 203 (1971), the Oregon Supreme Court interpreted a legislature's function with reference to claims barred or prohibited by the...