Baysinger v. Hanser

• Decision Date: 10 February 1947
• Docket Number: 40016
• Citation: 199 S.W.2d 644,355 Mo. 1042
• Parties: O. S. Baysinger, Appellant, v. Otto C. Hanser
• Court: Missouri Supreme Court

199 S.W.2d 644

355 Mo. 1042

O. S. Baysinger, Appellant, v. Otto C. Hanser

No. 40016

Supreme Court of Missouri

February 10, 1947

Appeal from Circuit Court of City of St. Louis; Hon. James C McLaughlin, Judge.

Affirmed.

Wayne Ely and James C. Jennings for appellant Lewis H. Cook of counsel.

(1) In determining whether a petition states a cause of action, the court must give every favorable inference to the allegations contained in the petition and the effect of such allegations. Sec. 1016, R.S. 1939; Laws 1921, p. 197; Webster's Collegiate Dictionary, Fifth Edition, published by G. & C Merriam Co. in 1942; "Words and Phrases," published by West Publishing Co.; Isbell v. Biederman Furn. Co., 115 S.W.2d 46. (2) In determining whether a petition states a cause of action, every reasonable intendment will be indulged in favor of the pleading. State ex rel. Becker v. Koerner, 181 S.W.2d 1004; State ex rel. Perkins v. Long, 275 Mo. 169, 204 S.W. 914; Cytron v. St. Louis Transit Co., 104 S.W. 109. (3) Where two or more statutory provisions relating to same subject matter are conflicting, they must be construed so as to give effect to both. State ex rel. McDowell v. Smith, State Auditor, 334 Mo. 653, 67 S.W.2d 50. (4) Two statutes, relating to same subject, must be read together, and provisions of one having special application to particular subject will be deemed a qualification of or exception to other statute general in its terms. Eagleton v. Murphy, 156 S.W.2d 683; State ex rel. McDowell v. Smith, State Auditor, 334 Mo. 653, 67 S.W.2d 50. (5) The ordinary and usual meaning rather than a strained and unusual meaning should be applied in construing the words of a statute. (6) A plaintiff has two years within which to bring his action against a physician for damages for malpractice, error or mistake. Sec. 1016, R.S. 1939; Laws 1921, p. 197; Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 74 A.L.R. 1252; Woodruff v. Shores, 190 S.W.2d 994. (7) The Statute of Limitations is not a bar unless pleaded. Ottenad v. Mount Hope Cemetery, 176 S.W.2d 62; Dyer v. Brown, 25 S.W.2d 551.

James E. Garstang and David A. McMullan for respondent; Carter, Bull, Garstang & McNulty of counsel.

(1) Plaintiff's cause of action accrued December 8, 1943, the date of his wife's death, under the wrongful death statute. Secs. 3652, 3653, 3654, R.S. 1939; Bloss v. Dr. C. R. Woodson Sanitarium Co., 5 S.W.2d 367, 319 Mo. 1061; Jordan v. St. Joseph Ry., L.H. & P. Co., 73 S.W.2d 205, 335 Mo. 319; Knorp v. Thompson, 175 S.W.2d 889, 352 Mo. 44; Rositzky v. Rositzky, 46 S.W.2d 591, 329 Mo. 662. (2) Plaintiff did not file suit until September 18, 1945, and as any action under the wrongful death statute must be brought within one year from the date the cause of action accrues, plaintiff's action is barred. Sec. 3656, R.S. 1939; Jordan v. St. Joseph Ry., L.H. & P. Co., 73 S.W.2d 205, 335 Mo. 319; Goldschmidt v. Pevely Dairy, 111 S.W.2d 1, 341 Mo. 982; Blaser v. Osage River Gravel Co., 219 S.W. 585; Glasgow v. City of St. Joseph, 184 S.W.2d 412, 353 Mo. 740; Krueger v. Walters, 179 S.W.2d 615. (3) Defendant's motion to dismiss properly presented question of limitation. Sec. 62, Civil Code of Missouri; Knorp v. Thompson, 175 S.W.2d 889, 352 Mo. 44; Chandler v. Chicago & A.R. Co., 158 S.W. 35, 251 Mo. 592; Goldschmidt v. Pevely Dairy Co., 111 S.W.2d 1, 341 Mo. 982; Woodruff v. Shores, 190 S.W.2d 994; King v. Smith Baking Co., 71 S.W.2d 115, 228 Mo.App. 721.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

In this action the petition alleges that the defendant, Dr. Otto C. Hanser, undertook to treat and prescribe for the plaintiff's wife but that in doing so he failed and neglected to exercise ordinary care with the result that the plaintiff's wife died. Mrs. Baysinger is alleged to have died as a result of the doctor's negligence on December 8, 1943. Her husband, O. S. Baysinger, instituted this action for damages in the sum of $ 10,000.00 on the 18th day of September 1945 and the decisive question is whether his cause of action is under and barred by the one year limitation of our wrongful death statute (Mo. R.S.A., Sec. 3656) or whether it is under and covered by the two year limitation of our statute governing the period of time in which action for malpractice shall be commenced. Mo. R.S.A., Sec. 1016. The trial court sustained the defendant's motion to dismiss the plaintiff's petition for the reason that the petition, upon its face, failed to state a claim upon which relief could be granted. Civil Code, Sec. 62. The defendant's theory is that the plaintiff's petition shows upon its face that the action is for wrongful death and is therefore barred by the one year statute of limitation. On the other hand, the plaintiff contends that the action, upon its face, is one for malpractice and therefore not barred because suit was instituted within two years of his wife's death.

The defendant's motion to dismiss was upon the ground that "the petition filed by plaintiff therein shows upon its face that the plaintiff has no claim against defendant on which relief can be granted." The plaintiff makes the preliminary point that the statute of limitations is an affirmative defense and therefore the defendant, not having specially and specifically pleaded the statute of limitations, had waived the defense or objection in so far as the petition and motion to dismiss are concerned. But the cases upon which the plaintiff relies were tried upon the merits (Dyer v. Brown (Mo. App.), 25 S.W.2d 551); in one the statute of limitations was pleaded as a defense ( Ottenad v. Mount Hope Cemetery & Mausoleum Co. (Mo. App.), 176 S.W.2d 62) but in neither case was it determinable from the face of the petition whether the cause of action was barred by some statute of limitation and the question of whether either petition was therefore demurrable was not presented. It was decided, at least inferentially, that a petition in a wrongful death case was demurrable as failing to state a cause of action if it appeared from the petition that the cause of action was barred by the statute of limitations (Chandler v. Chicago & Alton R. Co., 251 Mo. 592, 158 S.W. 35) and now the question is whether that rule has been altered by the Civil Code.

The use of demurrers has been abolished (Civil Code, Sec. 59) but the motion to dismiss, for failure to state a claim upon which relief can be granted when that objection appears upon the face of the petition (Civil Code, Sec. 62), performs the same function heretofore performed by demurrers. Dennis v. Village of Tonka Bay, 151 F.2d 411. However, as to statutes of limitation the civil code specifically provides that "In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations." Civil Code, Sec. 40. In substance all these sections of the code were adapted from the federal code. Federal Rules 8c, 12h. There is an additional rule in the federal code which provides that "For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter." Federal Rule 9(f). Despite this latter section in the federal rules the decisions of the federal courts are in irreconcilable conflict upon the problem of whether the bar of the statute of limitations may be raised by a general motion to dismiss when the objection appears upon the face of the petition. See the collection of cases 28 U.S.C.A., Sec 723c, Rule 8, note 23.

The United States District Court for the Western District of Missouri in construing our wrongful death statutes has held that the period of limitation provided by those statutes is not a matter of substantive right, does not extinguish the cause of action, and is available only as a defense and therefore could not be raised by a motion to dismiss. Childers v. Eagle Picher Lead Co., 35 F.Supp. 702. It should be noted, however, that the objection in that case was "that upon the face of the petition the right of action was barred to the decedent in his lifetime and that the plaintiff would therefore have no right now to maintain the action" hence, as the court pointed out, whether the action was barred in the decedent's lifetime probably presented an issue of fact. Here the objection, if applicable, appears upon the face of the petition. Our wrongful death statutes created a new right, a new and different cause of action (Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920) and at the same time introduced into the terms of the statutes as an inherent part of the cause of action a time limit for its maintenance (5 Cyclopedia of Federal Procedure, Sec. 1514) and we are committed to the view that the limitations of the death statutes are matters of substantive right and not mere technical limitations or bars to the remedy. Barker v. Hannibal & St. Jos. Ry. Co., 91 Mo. 86, 14 S.W. 280; Chandler v. Chicago & Alton R. Co., supra; 16 Am. Jur., Sec. 286. In these circumstances, if the action is under the wrongful death statutes and it appears from the petition that the statutory limitation period has expired, the objection may be raised under the civil code by motion (Gossard v. Gossard, 149 F.2d 111, 113; Hartford-Empire Co. v. Glenshal Glass Co., 47 F.Supp. 711, 714) as it is elsewhere generally raisable by demurrer. Annotation 107 A.L.R. 1048, 1051. In this case it would seem to be a useless waste of time to hold otherwise as the defendant would make the same objection by answer if the cause were remanded for the sole reason that the objection could not be made by a motion to dismiss. Pearson v. O'Connor, 2 F.R.D. 521.

The appellant points to the definition of malpractice and to the allegations of his...