Duke v. Housen, 4811
| Citation | 590 P.2d 1340 |
| Decision Date | 02 March 1979 |
| Docket Number | No. 4811,4811 |
| Parties | "Pony" DUKE, Appellant (Defendant below), v. Margaret HOUSEN, Appellee (Plaintiff below). |
| Court | United States State Supreme Court of Wyoming |
Before RAPER, C. J., McCLINTOCK and THOMAS, JJ., GUTHRIE, J., Retired and ARMSTRONG, D. J., Retired. ROONEY, J., did not participate.
After full consideration, it is, by a majority of the Court so deciding,
ORDERED that the plaintiff-appellee's Petition for Rehearing, 589 P.2d 334, be and is denied.
The majority opinion has been a confusing and difficult one for me to read because of contradictory statements, 1 leaving me without a clear understanding as to just what is the holding of the court. I share the concern expressed in the petition for rehearing that the majority ignore two well-established rules of this court: that it will grant all favorable inferences to the appellee, 2 and that it is not the trier of the facts. 3 I agree with counsel that not only has the majority made such findings but that they are not supported by and in some cases in conflict with the uncontradicted evidence. 4 These, to me, are sufficient reasons for granting a rehearing but my chief concern and principal reason for dissenting from the denial of rehearing is my belief that the principal and concurring opinion both inject a new and improper element into the creation of an actionable tort. That new element is discovery of the damage resulting from the wrongful act.
Justice Thomas clearly and unequivocally states that discovery is such a necessary element. The principal opinion first states that the elements of a tort are a wrongful act plus injury, but the states of Pennsylvania, Iowa and Nebraska (all three being states where sexual acts took place and the disease could have been implanted and develop to the point of injury) are excluded on the basis that in those states discovery is necessary before any cause of action arises. 5 In my view, under the undenied facts of this case, it is impossible for this court to exclude from consideration the state of Nebraska and its applicable four-year statute of limitations, except on the basis that discovery is an essential element of the tort. There was no discovery in Nebraska; therefore no action arose in that state.
I shall not reiterate the argument advanced in my dissent, that discovery is not an element of the tort itself but, as counsel for plaintiff express it, "starts the clock but does not determine the state in which the clock starts ticking." I may be wrong in this view, but the principal opinion does not even discuss it. I think that the matter should be thoroughly discussed before we make discovery an element of the tort itself.
While I adhere to the principle in Elmer v. State, 466 P.2d 375, 376 (Wyo.1970) that rehearing will not be granted "unless there is a reasonable probability that the court may have arrived at an erroneous conclusion," I am of the opinion that the majority have done just that. 6 I would therefore grant a complete rehearing.
1 To me, a glaring instance of contradiction is found by comparison of the statements at pages 349 and 351 of the Reporter (589 P.2d) with the finding and holding at page 345. The first statements mentioned are both to the effect that there is no testimony or proof as to just when the plaintiff was infected, with the further remark in the...
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Nowotny v. L & B Contract Industries, Inc.
...That rule with respect to statutes of limitations for tort theories was articulated in Duke v. Housen, 589 P.2d 334, reh'g denied, 590 P.2d 1340 (Wyo.1979), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979), and it has been consistently followed. E.g., Anderson v. Bauer, 681 P......
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Moncrief v. Sohio Petroleum Co.
...P.2d 414 (Wyo.1985); Olson v. A.H. Robins Company, Inc., 696 P.2d 1294 (Wyo.1985); Duke v. Housen, 589 P.2d 334 (Wyo.1979), reh. denied 590 P.2d 1340, cert. denied 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). The adoption of a discovery rule for purposes of determining when a tort act......
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Smithco Engineering, Inc. v. International Fabricators, Inc.
...a statute is deemed to be substantive will the forum court apply the foreign statute. Duke v. Housen, 589 P.2d 334, 341, reh'g denied 590 P.2d 1340 (Wyo.), cert. denied 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). Clearly, the law of the forum controls procedural matters. American Phy......
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Metzger v. Kalke
...of a particular claim. Olson v. A.H. Robins Company, Inc., Wyo., 696 P.2d 1294 (1985); Duke v. Housen, Wyo., 589 P.2d 334, reh. denied, 590 P.2d 1340, cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). We also note, however, that, where two constructions as to the limitation p......