Dorris v. McClanahan

• Decision Date: 17 March 1987
• Docket Number: No. 68502,68502
• Parties: Gary DORRIS, Plaintiff-Appellant, v. Darrell McCLANAHAN, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 870

725 S.W.2d 870

Gary DORRIS, Plaintiff-Appellant, v. Darrell McCLANAHAN, Defendant-Respondent.

No. 68502.

Supreme Court of Missouri En Banc.

March 17, 1987.

C. John Pleban, St. Louis, for plaintiff-appellant.

Mary Fitzgerald, Eugene K. Buckley, St. Louis, for defendant-respondent.

HIGGINS, Chief Justice.

Gary Dorris, a Missouri resident, appeals a verdict directed against him at the close of his case in his suit for damages suffered in an automobile collision in Illinois. The trial court ruled that because the Illinois statute of limitations applicable to personal injury would have barred plaintiff's suit in Illinois, section 516.190 RSMo 1986, the borrowing statute, barred plaintiff's suit in Missouri. The court of appeals affirmed the directed verdict, and this Court transferred the case to determine the effect, if any, of the recent case of Strahler v. St. Luke's Hospital, 706 S.W.2d 7 (Mo. banc 1986). Reversed and remanded.

On August 14, 1977, Darrell McClanahan, with Gary Dorris and two girls as passengers, drove a truck from Missouri to Madison County, Illinois. McClanahan and Dorris entered the state with the purpose to purchase beer and then return to their home state of Missouri. While in Illinois and about three miles from the Missouri border, the truck collided with an automobile parked on Interstate Highway 270. On June 10, 1982, nearly five years later, Dorris filed suit against McClanahan alleging injuries caused by McClanahan's negligence in the operation of the truck.

Section 516.190 provides:

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.

Illinois statute requires that a cause of action for personal injury be filed within two years after the cause accrues. Ill.Rev.Stat. Ch. 83, § 15 (1981).

Appellant argues that the cause of action did not "originate" in Illinois because the trip was only a day's excursion into Illinois for liquor and the passengers intended to return to Missouri. Alternatively, he argues that he was a minor under Missouri law on the date of the collision and if section 516.190 operates to borrow the two year statute of limitation from Illinois, Missouri tolls the statute until the disability is removed. § 516.170, RSMo 1986.

In Trzecki v. Gruenewald, 532 S.W.2d 209 (Mo. banc 1976), suit was filed by one Missouri resident against another Missouri resident to recover damages incurred in an automobile collision in Illinois. Both the plaintiff and defendant were on a trip which was intended to begin and end in Missouri. The Illinois statute provided that actions for damages for personal injuries must be filed within two years after the cause of action accrued. The suit was filed more than two years after the automobile collision. The trial court dismissed the action and this Court affirmed the dismissal. Citing section 516.190, RSMo, the Court held that the borrowing statute made the two-year Illinois statute of limitation a Missouri statute for purposes of the case and thus barred the action.

Similarly, in this case, the Missouri legislature has enacted the borrowing statute which precludes a conflict of laws questions and bars the action. In Devine v. Rook, 314 S.W.2d 932, 935 (Mo.App.1958), the court stated:

It is fundamental that the law of the place where the cause of action first came to life controls the substantive law of the cause, since the cause owes its existence, and the character of its existence, to that place. But in respect to the enforcement of that cause, the state which lends its courts and its processes to that purpose has the right to say how and when those processes may be used. Hence the law of the forum controls in respect to limitations.

The cause of action did "originate" in Illinois within the meaning of section 516.190, even though both parties are Missouri residents and the parties were on a day's excursion into Illinois. "Originated" as used in the borrowing statute means "accrued." Schnabel v. Taft Broadcasting Co., Inc., 525 S.W.2d 819 (Mo.App.1975). Section 516.100, RSMo 1986, states that for the purposes of sections 516.100 to 516.370, the cause of action accrues "when the damage resulting therefrom is sustained and is capable of ascertainment." There is no dispute that the collision occurred in Illinois.

In Renfroe v. Eli Lilly & Co., 686 F.2d 642 (8th Cir.1982), the federal court discussed this issue under the Missouri cases. In Renfroe, the plaintiffs sued the drug company to recover for damages sustained as a result of in utero exposure to DES. The plaintiffs maintained that the borrowing statute in section 516.190 should not have been applied because their cause of action originated in Missouri. The sale and distribution of the drug as well as its exposure to the plaintiffs occurred in Missouri; however, their cancerous conditions were not discovered until much later when the plaintiffs resided in other states. In denying the plaintiffs' claim, the court cited section 516.100 which states that a cause of action accrues when the plaintiff has sustained some damage capable of ascertainment. The court noted that it was only when the cancer developed and "became capable of ascertainment," that the cause of action accrued under Missouri law. Id. at 646. Therefore, the court correctly concluded that the cause of action "originated" in the foreign state where the plaintiffs first developed cancer capable of ascertainment. Id. at 647.

In McIndoo v. Burnett, 494 F.2d 1311 (8th Cir.1974), the court applied the Missouri borrowing statute to an action brought in Missouri for an injury sustained in Illinois. The parties to the action were Missouri residents who had agreed to travel together in the defendant's car to a bowling tournament in Illinois. In applying section 516.190 to the case, the court explained that when a tort occurs in a foreign jurisdiction, Missouri adopts the statute of limitations of that jurisdiction. Id. at 1313.

Both McIndoo and Renfroe follow the precedent this court enunciated in Trzecki v. Gruenewald, 532 S.W.2d 209, and support its continuing validity.

Appellant argues also that Kennedy v. Dixon, 439 S.W.2d 173 (Mo. banc 1969), may be applicable to this case. In Kennedy this Court abandoned the lex loci delicti rule and adopted section 145 of Restatement 2d on Conflict of Laws. Because the Missouri legislature preempts an analysis of 2d Restatement significant contacts in this case, Kennedy is inapplicable. Trzecki, 532 S.W.2d at 211.

Appellant argues alternatively that if the Illinois two-year statute of limitations is borrowed it was tolled because plaintiff was not required to bring his action under Missouri law before the age of twenty-one. Plaintiff filed the lawsuit on June 10, 1982, within two years following his twenty-first birthday. In support of his argument appellant cites section 516.170, RSMo 1986, which states in pertinent part:

If any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be ... within the age of twenty-one years ..., such person shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed.

Appellant thus raises a question of statutory construction. He argues that the words "entitled to bring an action in sections 516.100 to 516.370" must be construed in harmony with legislative intent; that the legislature clearly expressed its interest in protecting the rights of access to the courts for children up to age 21 by enacting this statute; that the language of the provision brings within it all actions which are permissible by virtue of sections 516.100 to 516.370; and because the borrowing statute falls within these criteria, the Missouri tolling provision must be applied to preserve plaintiff's cause of action.

In Strahler v. St. Luke's Hospital, 706 S.W.2d 7, 11 (Mo. banc 1986), this Court reaffirmed the intent to protect the minor's right of access to the courts. The Court stated that the tolling provision of section 516.170 must "preserve the cause of action for a minor and safeguard the minor's constitutionally guaranteed right of access to the courts...." In Strahler, the statutory limitation period contained in 516.105, RSMo 1978, was held to be unconstitutional as applied to minors under Mo.Const., art. 1, § 14, and was, therefore, found constitutionally infirm. In State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979), this Court noted the "[t]he right of access to the courts is said to trace back to Magna Charta" and is a part of the first amendment right to petition the government. Id. at 110.

Respondent argues that the proper construction of the statute reveals that the plaintiff was not entitled to bring a cause of action within the borrowing statute and, thus, section 516.170 is inapplicable. Respondent cites dicta in Devine v. Rook, 314 S.W.2d 932, that a foreign statute is "not wrenched bodily out of its own setting," but must be taken along with the case law which construes it and its companion statute. First, Devine is not in point. The issue of a minor plaintiff did not arise in Devine. The legislature has enacted this specific statute to protect the minor's right to access to the courts in his own right. Second, that interpretation would render the tolling provision meaningless where section 516.190 is involved because the provision can only be applied if the suit would have been otherwise barred. "Entitled to bring an action" refers only to the broad right to seek redress for a wrong. The tolling provision can then serve its purpose of preserving a right that has been otherwise barred.

Respondent also cites Handlin v. Burchett, 270 Mo. 114, 192 S.W. 1016 (1917), in ...