Brown v. Grinstead

• Decision Date: 26 June 1923
• Docket Number: No. 3273.,3273.
• Citation: 212 Mo. App. 533,252 S.W. 973
• Parties: BROWN v. GRINSTEAD.
• Court: Missouri Court of Appeals

252 S.W. 973

212 Mo. App. 533

BROWN v. GRINSTEAD.

No. 3273.

Springfield Court of Appeals, Missouri.

June 26, 1923.

Appeal from Circuit Court, Mississippi county; Frank Kelly, Judge.

Action by R. W. Patrick against W. F. Grinstead, in which E. Marion Brown, as administrator, was substituted after the death of the original plaintiff. Judgment for defendant, and plaintiff appeals. Affirmed.

J. M. Haw and James A. Boone, both of Charleston, for appellant.

Russell & Joslyn, of Charleston, for respondent.

BRADLEY, J.

Plaintiff, B. 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 Statutes 1913, same as section 14, chapter 83, Hurd's Revised Statutes 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, R. S. 1919, of our statute. Section 1324 of our statute reads:

"Whenever a cause of action has been Icily 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. Section 1889, R. S. 1909, now section 1317, EL S. 1919. The limitation in our statute, however, was reduced to two years in 1921. Section 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, R.. S. 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 guaze sponge was left; hence he could not conceal such fact. Wood v. Williams, 142 M. 269, 31 N. E. 681, 34 Am. St. Rep. 79; Parmelee v. Price, 208 Ill 544, 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, R. S. 1919, of our statute? This statute reads 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: Provided, that for the purposes of this article, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment. * * *"

Plaintiff's cause of action was fully barred by the Illinois statute; hence our statute, section 1324, It. S. 1919, set out supra, bars it here unless saved by section 1315, supra. Sections 1315 and 1324 are both in article 9 of chapter 12 of our Revised Statutes 1919. The proviso to section 1315 was added in 1919 after plaintiff's cause of action accrued (Laws 1919,...