Brown v. Grinstead
| Decision Date | 26 June 1923 |
| Citation | 252 S.W. 973,212 Mo.App. 533 |
| Parties | E. MARION BROWN, Administrator of the Estate of R. W. PATRICK, deceased, Appellant, v. W. F. GRINSTEAD, Aespondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Mississippi County.--Frank Kelly Judge.
AFFIRMED.
Judgment affirmed.
J. M Haw and Jas. A. Boone for appellant.
(1) The court erred in holding that plaintiff's cause of action does not come within the exceptions to the Illinois statute of limitations. Section 22, Chapter 83, Hurd's Revised Statutes of Illinois 1913. (2) Where the damage is the gist o fthe action the time runs only from the actual happening of the damage. Webb's Pollock on Torts 244; 7 Waite's Actions and Defenses, p. 263; Schlitz Brewing Co. v Compton, 142 Ill. 511, 514. (3) While the general rule is that ignorance cannot be considered in determining when the statute begins to run, an exception to this rule is made in cases of concealment of the cause of action or fraud on the part of the defendant, or where the ignorance of the plaintiff is due to no fault or negligence of his own, but to the peculiar circumstances of the case, or arising from necessity in order to do justice in the particular case. Beaty v. Cruce, 204 S.W. 553, 200 Mo.App. 199; Braun v. Sauerwein, 19 U. S. L. C. P. 896 (10 Wall. 218); Gillette v. Tucker, 65 N.E. 865; Huggins v. Toler, 64 Ky. 192. (4) The question of limitations as prescribed by the statute of Illinois is a question of fact that should have been submitted to the jury. 25 Cyc. 1434-5, and cases cited; State ex rel. v. Hawkins, 103 Mo.App. 251. It is the well-settled rule of courts that when there is doubt as to the time when the limitation commences to run, that construction should be given which is most favorable to the enforcement of the common-law rights of the citizens. 17 R. C. L., sec. 32, page 686, (5) The question of negligence was one for the jury. Krinard v. Westerman, Mo. , 216 S.W. 938, 940; Hague v. Threadgill, Mo.App. , 236 S.W. 895, 896-897; Tate et al. v. Tyzzer, Mo.App. , 234 S.W. 1038, 1041; Evans v. Clapp, Mo.App. , 231 S.W. 79; Gottschall v. Geiger, Mo.App. , 231 S.W. 87, 96; Sontag v. Ude, Mo.App. , 177 S.W. 659. (6) Respondent's position that no presumptions and inferences can be indulged in in the case at bar is directly contrary to the holdings of the courts of this State. Krinard v. Westerman, Mo. , 216 S.W. 938, 940; Sontag v. Ude, Mo.App. , 177 S.W. 659, 661; Fields v. Metropolitan Street Railway Company, 169 Mo.App. 624, 633. (7) That the Legislature may change an existing Statute of Limitations and shorten the period of limitations provided a reasonable time is allowed for actions to be brought or extend the period and lengthen the time in which suits may be brought is a well settled principle of law. 17 R. C. L., secs. 11, 12, page 672; Tice v. Fleming, 173 Mo. 49, 55; Lawrence v. Louisville, 27 L. R. A. 560.
Russell & Joslyn for respondent.
(1) There is no proof that leaving the gauze sponge in the cavity caused the subsequent breaking and running of the wound. The infection was already in the cavity before the first operation and it is possible and highly probable for such wounds to break and run at intervals. Hite v. Metropolitan St. Ry. Co., 130 Mo. 132; McManamee v. M. P. Co., 135 Mo. 440; Feary v. Met. St. Ry. Co., 162 Mo. 75; Malloy v. St. Louis, etc., Co., 173 Mo. 75; McGrath v. St. Louis, etc., Co., 197 Mo. 97; Orcutt v. Century Bldg. Co., 201 Mo. 424; Kirkpatrick v. Metropolitan Co., 211 Mo. 68; Beave v. St. Louis Transit Co., 212 Mo. 331; Thompson v. Keys-Marshall Co., 214 Mo. 487; Heiberger v. Missouri, etc., Co., 133 Mo.App. 452. (2) The foregoing statutes of Illinois and the construction placed thereon by the Appellate Courts of that State clearly show that plaintiff's cause of action was barred at the time he instituted suit in this case, and it is, therefore, barred by the Missouri Statutes. Sec. 1895, R. S. 1909; McCoy v. Railroad, 134 Mo.App. 628. Section 1887 of the Revised Statutes of Missouri for the year 1909, prior to the amendment made in 1919, was as follows: "Civil actions other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued." (3) The proviso now appearing in section 1513 of the Revised Statutes of 1919, was not added until the year 1919, long after appellant's cause of action accrued, but before he instituted his suit. Therefore, it cannot have any application. Sec. 1342, R. S. 1919; Cranor v. School District, 81 Mo.App. 152; Wencker v. Thompson, 96 Mo.App. 65-66; McFaul v. Haley, 166 Mo. 63. (4) Appellant's cause of action accrued when the alleged negligent act was committed, to-wit, on the 13th day of February, 1918. 25 Cyc, page 1116; Wood on Limitations, sec. 177; Schade v. Gehner, 133 Mo. 252; Sachen v. Morton, 165 F. 654; Fortner v. English, 226 Ill. 262, 80 N.E. 781; Wilcox v. Plumer, 4 Pet. 181, 7 L.Ed. 821. (5) Mere silence by a person liable to an action is not concealment of the cause of action, but such concealment must consist of affirmative acts of representation. Therefore, Dr. Grinstead's failure to notify the appellant of something which he did not himself know about until after Dr. Harmon had performed an operation on appellant, would not take the case out of the Statute of Limitations of either Illinois or Missouri, which appellant is seeking to invoke in this case. Word v. Williams, 31 N.E. 681; Parmelee v. Price, 70 N.E. 725; Chrock v. Duncan, 189 S.W. 610; Callahan v. Callahan, 175 Mo. 346, 360; Shelby Co. v. Bragg, 135 Mo. 291.
Plaintiff, R. W. Patrick, in his lifetime, sued to recover damages resulting from alleged negligence on the part of defendant in performing a surgical operation. At the close of the case the court directed a verdict for defendant on the ground that plaintiff's cause of action was barred by the Statute of Limitation. Judgment was entered in accordance with the directed verdict, and after the usual motion plaintiff appealed.
The operation was performed in Cairo, Ill., on February 13, 1918. Plaintiff commenced this cause on January 25, 1921. The operation was performed in Illinois, and defendant pleaded the Illinois statute which is two years. In the operation plaintiff's appendix was removed, and also the gall bladder was operated upon. A gauze sponge was left in plaintiff's abdominal cavity of which he had no knowledge until a second operation in St. Louis on October 23, 1920, when the gauze sponge was discovered and removed.
Defendant introduced in evidence the Illinois statute in force at the time of the operation, and also Illinois decisions construing the statute as applicable to malpractice cases. Section 14 of Chapter 83, Hurd's Revised Statute, 1913, same as section 14, Chapter 83, Hurd's Revised Statute, 1917, in force at the time reads as follows: "Actions for damages for an injury to the person . . . shall be commenced within two years next after the cause of action accrued." Defendant pleaded and introduced in evidence Keirsey v. McNeemer, 197 Ill.App. 173, and other cases, construing section 14 as applicable to plaintiff's cause of action. Defendant relied upon section 14 of the Illinois Statute in connection with section 1324, Revised Statutes 1919, of our statute. Section 1324 of our statute reads: "Whenever a cause of action has been fully barred by the laws of the State, territory or country in which it originated, said bar shall be a complete defense to any action thereon brought in any of the courts of this State." At the time of the operation in Cairo, Ill., on February 13, 1918, our statute applicable to this character of action was five years. [Sec. 1889, R. S. 1909, new Sec. 1317, R. S. 1919.] The limitation in our statute, however, was reduced to two years in 1921. [Sec. 1319a, Laws 1921, p. 197.]
Plaintiff seeks to avoid the Illinois statute on two grounds. First it is contended that section 22 of Chapter 83 of the Illinois Statute which plaintiff pleaded in reply and offered in evidence is applicable to plaintiff's cause of action. Second, it is contended that the proviso to our statute, section 1315, Revised Statutes 1919, can be invoked.
Section 22 of Chapter 83 of the Illinois Statute is as follows: "If any person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards." There is no contention that defendant did anything affirmatively or otherwise to conceal the fact that a gauze sponge was left in plaintiff's abdominal cavity. Defendant did not know that the gauze sponge was left, hence he could not conceal such fact. [Wood v. Williams (Ill.), 31 N.E. 681; Parmelee v. Price (Ill.), 70 N.E. 725; Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600; Callan v. Callan, 175 Mo. 346, 74 S.W. 965; Beaty v. Cruce, 200 Mo.App. 199, 204 S.W. 553.] Plaintiff cites and relies on the Beaty Case as supporting his contention that limitation did not begin to run until the gauze sponge was discovered at the second operation. In that case a forgery was concealed, and we held in effect that the defendant there stood in the shoes of the forger. We do not think that plaintiff can invoke section 22 of the Illinois Statute. We have a somewhat similar statute (section 1334, R. S. 1919), but no construction thereof which we have found supports plaintiff's contention.
Can plaintiff invoke the proviso to section 1315, Revised Statutes 1919, of our statute? This...
To continue reading
Request your trial