DeHart v. Anderson, 2-976A326

Docket NºNo. 2-976A326
Citation178 Ind.App. 581, 383 N.E.2d 431
Case DateDecember 21, 1978
CourtCourt of Appeals of Indiana

Danford R. Due, Stewart, Irwin, Gilliom, Fuller & Meyer, Edward O. DeLaney, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for appellant.

Thaddeus R. Spurgeon, Pendleton, for appellee.

YOUNG, Judge.

Appellee Anderson filed a complaint on July 29, 1975, for recovery of damages for personal injuries. Anderson alleged that on April 23, 1972, she was a passenger in a car which was involved in a collision with a vehicle driven by the Appellant DeHart. The complaint stated that she was eighteen years of age at the time of the collision. On August 18, 1975, DeHart filed his answer which consisted of a general denial. On August 26, 1975, DeHart petitioned to file an amended answer, which proposed amended answer was attached to the petition as an exhibit. The amended answer admitted the complaint's allegations of the date of the incident and Anderson's age at that time, and raised the Statute of Limitations as an affirmative defense. The trial court granted the petition to file the amended answer, and on November 20, 1975, the amended answer was filed. On the same date, a motion to dismiss pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6), was filed, based on the Statute of Limitations. Anderson did not respond to these motions in any way. The trial court granted the motion to dismiss on December 19, 1975. Again, Anderson did not respond. Judgment was entered January 15, 1976. Anderson then filed a Motion to Correct Errors questioning the propriety of the procedures by which the statute of limitations defense was raised, the sufficiency of evidence supporting the defense, and the allegedly retroactive application of the present disability statute. The court granted Anderson's motion and ordered the cause be set for trial.

DeHart appeals from the court's ruling without filing his own motion to correct errors. The issues on appeal, therefore, are determined by the judgment dismissing the cause, the motion to correct errors, and the trial court's ruling on the motion. P-M Gas & Wash Co. v. Smith, (1978) Ind., 375 N.E.2d 592, 597.

The original judgment was entered after Anderson's failure to plead over subsequent to the trial court's grant of DeHart's motion to dismiss. The sole issue was the statute of limitations, and the effect of Ind.Acts 1973, P.L. 313, § 3 reducing the age of majority to eighteen years. Anderson's Motion to Correct Errors made the following specific arguments:

1. The Motion to Dismiss was not timely filed as Trial Rule 12(A) provides the time for filing shall be computed pursuant to Trial Rule 6(C), which does not extend the time for filing.

2. The Motion to Dismiss should have been treated as a Motion for Summary Judgment since the matters alleged involved matters outside the pleadings.

3. The decision of the trial court was contrary to law in that it retroactively applied a legislative act so as to deprive Anderson of her "vested right" to preservation of her remedy through minority status until her twenty-first birthday.

The heart of this appeal is the application of the Statute of Limitations. The law existing at the time of the accident allowed two years for bringing an action for personal injury. IC 1971, 34-1-2-2 (Burns Code Ed.). Persons under a disability were allowed two years after the disability was removed to bring suit. IC 1971, 34-1-2-5 (Burns Code Ed.). IC 1971, 34-1-67-1 (Burns Code Ed.), defined persons under the age of twenty-one as being under a legal disability. Subsequent to the accident but more than two years before the filing of Anderson's complaint, the statute defining minority was amended, reducing the age to eighteen. The Appellant argues that the effect of this amendment was to remove Anderson's disability, therefore she should have brought suit within two years of the effective date of the amendment. The Appellee argues that this would be a retroactive application of the amendment, impermissible in that it would cut off her vested rights.

This issue was the subject of a recent diversity action in the Seventh Circuit Court of Appeals, requiring application of Indiana law. In D'Andrea v. Montgomery Ward & Co., 571 F.2d 403 (7th Cir. 1978), it was held that the amendment served to lift the disability within the meaning of IC 1971, 34-1-2-5 (Burns Code Ed.), and therefore the plaintiff had two years from its effective date within which to bring suit. The same decision was reached by a number of other jurisdictions when faced with this issue. See Ledwell v. May Co., (1977) 54 Ohio Misc. 43, 377 N.E.2d 798, and the cases cited therein. We agree that as of the effective date of a legislative act reducing the age of majority from twenty-one to eighteen years, all persons between those ages are relieved of their disability. There is nothing retroactive in this application of the amended statute. 1

Further, Anderson's claim of a vested right to minority status until her twenty-first birthday is without merit. Anderson cites Irwin v. State, (1942) 220 Ind. 228, 41 N.E.2d 809, as support for her contention. In holding that the disability statute does not affect proceedings to vacate judgments in criminal cases, the court in Irwin described the disability statute as "a law affecting substantive rights" rather than a rule of pleading and practice. 41 N.E.2d at 817. However, we will not so expand this holding out of its context as to be precedent for finding the disability statute creates a vested right in minority status. Rather, we agree with the evaluation in Shoaf v. Shoaf, (1972) 282 N.C. 287, 290, 192 S.E.2d 299, 302:

" 'The rule is settled beyond a doubt that majority or minority is a status rather than a fixed or vested right and that the legislature has full power to fix and change the age of majority.' * * * 'The removal of the disabilities does not result in the creation of any new rights, but merely in the termination of certain personal privileges. There is no vested property right in the personal privileges of infancy.' "

See also Feest v. Allis Chalmers Corp., (1975) 68 Wis.2d 760, 229 N.W.2d 651; Arnold v. Davis, (Tenn.1973) 503 S.W.2d 100. Cf. Wilson v. Wilson, (1882) 86 Ind. 472. IC 1971, 34-1-2-5, which provides that a person under a disability has two years after the disability is lifted within which to file suit, is one such privilege of infancy. IC 1971, 34-1-2-5, is not a statute of limitations itself, nor does it "toll" the statute of limitations. "It merely provides a reasonable grace period within which to sue once a disability is removed." Chaffin v. Nicosia, (1974) 261 Ind. 698, 310 N.E.2d 867, 870. Nevertheless, it is analogous to a statute of limitations. Both are remedial in that they concern the means by which rights are enforced. There is no question that the Legislature may alter mere remedies, therefore the law in effect when an action is brought governs that action. Guthrie v. Wilson, (1959) 240 Ind. 188, 162 N.E.2d 79, 81; Sansberry v. Hughes, (1910) 174 Ind. 638, 640-41, 92 N.E. 783, 784. However, due process forbids the immediate withdrawal of all legal means of enforcing a right, since that would amount to withdrawal of the right itself. Id.

As a practical matter, the lowering of the age of majority to eighteen did lessen the time within which Anderson could bring suit. It did not remove it entirely, however. Anderson was allowed a two year grace period under the statute. As this is equal in length to the statute of limitations for personal injury, we cannot say that in this case it is unreasonably short.

We find, therefore, that applying the amended disability definition to Anderson is neither a retrospective application nor terminative of any vested right. Since Anderson was between the ages of eighteen and twenty-one on July 26, 1973, when the amendment became effective, her disability by reason of minority was lifted as of that date. She did not file suit until July 29, 1975.

In light of the above it is clear that Anderson's suit is barred as a matter of law by reason of the expiration of the two years allowed by IC 1971, 34-1-2-5.

We find no defect in the proceedings by which the statute of limitations was raised as a defense. The question of whether the affirmative defense was effectively raised at all is not in issue. The proper procedure for challenging the timeliness of a pleading is to apply for default under Trial Rule 55, before the pleading is filed. Anderson did not object either to the petition to amend the answer or to the filing of the amended answer, and her Motion to Correct Errors questions the proceedings only on the issues of the timeliness of DeHart's motion to dismiss in light of Trial Rule 6(C) and whether DeHart's motion should have been treated as a motion for summary judgment.

With regard to the first of these issues, we note that a motion to dismiss pursuant to Trial Rule 12(B)(6) is a permissible means of raising the statute of limitations. Middelkamp v. Hanewich, (1977) Ind.App., 364 N.E.2d 1024, 1029; Brown v. Gardner, (1974) 159 Ind.App. 586, 308 N.E.2d 424; American States Ins. Co. v. Williams, (1972) 151 Ind.App. 99, 278 N.E.2d 295. The time for making a motion to dismiss for failure to state a claim is governed by Trial Rule 12(B), which provides that "(a) motion making any of these defenses shall be made before pleading if a further pleading is permitted or within twenty (20) days after service of the prior pleading if none is required." Trial Rule 6(C) deals with the effect of a Rule 12(B) motion on the time for service of responsive pleadings, and therefore is not dispositive of this issue. Further, Trial Rule 12(H)(2) specifies that "(a) defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or...

To continue reading

Request your trial
24 cases
  • Western Smelting & Metals v. Slater Steel, Inc.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • November 12, 1985
    ...away. See Herrick, 245 F.2d at 174; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N.E. 586 (1887); DeHart v. Anderson, 178 Ind.App. 581, 383 N.E.2d 431, 435 (1978). However, I.C. XX-X-XX-X cannot be said to be merely remedial. It creates a new right for civil plaintiffs: the ri......
  • Anderson v. Anderson, 2-1175A341
    • United States
    • Court of Appeals of Indiana
    • December 31, 1979
    ...properly be raised by way of a T.R. 12(C) motion for judgment on the pleadings. Indiana Rules of Procedure, Trial Rule 12(H)(2); 28 DeHart v. Anderson, supra. When so utilized, a motion for judgment on the pleadings should be treated in the same manner as a motion made pursuant to T.R. 12(B......
  • State ex rel. Basham v. Medical Licensing Bd. of Indiana, 3-882A188
    • United States
    • Court of Appeals of Indiana
    • July 25, 1983
    ...required to conduct one." Id., Ind. at 192, 279 N.E.2d at 810 (emphasis added). Sacks was cited and followed in DeHart v. Anderson (1978), 178 Ind.App. 581, 383 N.E.2d 431 in which the Court stated in footnote 3 on 383 N.E.2d page 437, "Since neither Anderson nor DeHart requested one, howev......
  • Villanueva v. State, 3-377A64
    • United States
    • Court of Appeals of Indiana
    • December 21, 1978
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT