Arender v. Smith County Hosp.

• Decision Date: 18 May 1983
• Docket Number: No. 54149,54149
• Citation: 431 So.2d 491
• Parties: Dewitt ARENDER, Mary Regina Arender and Dewey Russell Arender v. SMITH COUNTY HOSPITAL, William D. Owen, M.D., and Joyce McMillan, R.N.
• Court: Mississippi Supreme Court

Page 491

431 So.2d 491

Dewitt ARENDER, Mary Regina Arender and Dewey Russell Arender v. SMITH COUNTY HOSPITAL, William D. Owen, M.D., and Joyce McMillan, R.N.

No. 54149.

Supreme Court of Mississippi.

May 18, 1983.

Bruce B. Smith, Magee, for appellants.

Upshaw & Ladner, Heber Ladner, Jr., Chris J. Walker, Wise, Carter, Child & Caraway, George Q. Evans, Douglas E. Levanway, Jackson, for appellees.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Smith County wherein an action brought under the Mississippi wrongful death statute, Mississippi Code Annotated section 11-7-13 (Supp.1982) was dismissed with prejudice as barred under Mississippi Code Annotated section 15-1-49 (1972), the statute of limitations. Having perfected their appeal to this Court, appellants assert the lower court erred in holding the six-year statute of limitations applied to all appellants, two of whom were minors at the time the cause of action accrued. We affirm.

In December 1974, Mary E. Arender, wife of Dewitt Arender and the mother of Mary Regina, age 11, and Dewey, age 7, was admitted to the Smith County Hospital under the care of Dr. Owen and Nurse McMillan. Approximately six days following her admittance Mrs. Arender died.

On November 24, 1981, the appellants filed their joint declaration against appellees seeking $500,000.00 compensatory damages and $200,000.00 punitive damages resulting from the negligent acts of appellees during treatment of Mary E. Arender while a patient in the Smith County Hospital. In the nature of a plea in bar each appellee successfully raised the six-year statute of limitations, section 15-1-49, as barring appellants' cause of action and their motion to dismiss with prejudice was sustained.

At the time the Arenders filed suit against the appellees, there was not a special statutory limitation, independent of the general statute of limitations, section 15-1-49, as to the time an action for wrongful death must be brought. In March 1908, the legislature removed the one-year limitation and since that time all such actions have been governed by the six-year statute. ¹ As a general rule, relief from the provisions of a statute of limitations on account of disability will not be granted unless it contains a savings clause. See Bryant v. Associates Discount Corporation, 251 Miss. 1, 167 So.2d 657 (1964).

The appellants contend the time for bringing a wrongful death action, which is limited under section 15-1-49, is also subject to the savings statute, Mississippi Code Annotated section 15-1-59 (1972) found within the same chapter which states:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one years.

The above statute specifically reserves the tolling of the limitation period to those personal actions mentioned within the chapter of which the wrongful death act is not one.

In the early case of Foster v. Yazoo & M.V.R. Co., 72 Miss. 886, 18 So. 380 (1895), we held the language "any of the personal actions before mentioned" within Mississippi Code Annotated section 2746 (1892), the predecessor of section 15-1-59, must be held to apply to those actions mentioned within that chapter. We further stated Considerations suggested by the manifest hardship of the instance are proper to be addressed to the legislative branch of the government, but cannot influence a court to infringe the general rule. It is to be said, too, as well put in the Kentucky case, that the nature of the cause of action is such that it is in the interest of a sound public policy that the right to sue should be limited to some short period as against all parties. However deeply regretting, therefore, the seeming hardness of the precedent, we must not permit that hardness to betray us into bad law. (18 So. at 381).

Section 15-1-59 therefore does not apply to an action for wrongful death. Furthermore, where a statute does not provide for a savings clause, this Court is without the right to engraft such an exception upon it. See Gulf & S.I.R. Co. v. Bradley, 110 Miss. 152, 69 So. 666 (1950).

The Mississippi statute allowing for the recovery for the wrongful death of a spouse or a parent is Mississippi Code Annotated section 11-7-13 (Supp.1982) which reads, in pertinent part:

The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind...