Gifford v. Saunders

• Decision Date: 15 May 1971
• Docket Number: No. 46003,46003
• Citation: 485 P.2d 195,207 Kan. 360
• Parties: Sandra S. GIFFORD, Appellee, v. Sandra K. SAUNDERS, Appellant.
• Court: Kansas Supreme Court

Page 195

485 P.2d 195

207 Kan. 360

Sandra S. GIFFORD, Appellee, v. Sandra K. SAUNDERS, Appellant.

No. 46003.

Supreme Court of Kansas.

May 15, 1971.

Syllabus by the Court

1. The limitation of time for commencing civil actions is exclusively governed by the provisions of Article 5 of the Kansas Code of Civil Procedure, except where a different limitation is specifically provided by statute.

2. K.S.A.1970 Supp. 38-101 relating to rights of majority and capacity to sue and be sued is not a statute of limitation and is not within the purview of the exception expressed in K.S.A. 60-501.

3. The legal disability of a person being within the age of twenty-one years with respect to the running of the statute of limitations under the provisions of K.S.A. 1970 Supp. 60-515(a) is not terminated by the fact that such person is or becomes married when of the age of eighteen years or over.

Ronald G. Hinkle, of Haskin, Noonan, McGee & Hinkle, Olathe, argued the cause and was on the brief for appellant.

Lawrence G. Zukel, Overland Park, argued the cause and was on the brief for appellee.

KAUL, Justice:

This is an interlocutory appeal from an order denying defendant's motion for summary judgment based on the grounds that plaintiff-appelee failed to bring her tort action within the time allowed by the applicable statute of limitations.

On August 9, 1964, plaintiff-appellee (Sandra S. Gifford, then Sandra S. Crotchett) was injured in an accident while occupying an automobile driven by defendant-appellant (Sandra K. Saunders, then Sandra K. Brownlee).

Plaintiff at the time of the accident was a single, minor, female. She was born on October 22, 1947. She filed this action on October 15, 1969, seven days before attaining the age of twenty-two years.

In her answer defendant alleged that plaintiff was married on January 22, 1966, and attained the age of majority on that date. Defendant alleged that since plaintiff failed to file her cause of action within two years after the date of her marriage her cause was barred under the applicable provision of K.S.A. 60-513 (now 1970 Supp.).

Defendant filed a motion for summary judgment on the ground that plaintiiff's action was barred by the statute of limitations and attached an affidavit setting out the date of plaintiff's marriage, with a certified copy of plaintiff's marriage certificate attached.

The trial court denied defendant's motion, ruling that the marriage of plaintiff after her cause of action arose and prior to her attaining the age of twenty-one years did not affect the running of the statute of limitations and thus plaintiff was not required to bring her action with one year of the date of her marriage, or within two years from the time the cause of action arose, whichever is longer.

The issue on appeal is accurately stated by the trial court in its certification of the question as a proper subject to be resolved by interlocutory appeal:

'Does the marriage of Plaintiff after a cause of action arises and prior to Plaintiff's attaining the age of 21 affect the running of the statutes of limitations so as to require Plaintiff to bring her cause of action within 1 year from the date of marriage or within 2 years from the time the cause of action arose, whichever is longer?'

The two year limitation in which the actions enumerated in 60-513 may be brought is tolled by the provisions of K.S.A.1970 Supp. 60-515(a) which read:

'If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of twenty-one (21) years, or an incapacitated person, or imprisoned for a term less than his natural life, such person shall be entitled to bring such action within one (1) year after such disability shall be removed, but no such action shall be maintained by or on behalf of any person under the disabilities specified after twenty-two (22) years from the time the cause of action shall have accrued.' (Emphasis supplied.)

Notwithstanding the express provision of 60-515(a), that the runing of the statute is tolled with respect to any person 'within the age of twenty-one (21) years,' defendant claims the tolling of the statute was terminated under the provisions of K.S.A.1970 Supp. 38-101 by the marriage of plaintiff.

K.S.A.1970 Supp. 38-101 reads:

'The period of minority extends in males and females to the age of twenty- one (21) years: Provided, that every person eighteen (18) years of age or over who is or has been married, shall be considered of the age of majority in all matters relating to contracts, property rights and liabilities, and the capacity to sue and be sued.'

We cannot agree with the position taken by defendant.

K.S.A.1970 Supp. 60-515 is a part of Article 5-Limitations of Actions-of our Code of Civil Procedure. The scope of the article is unequivocally set forth in K.S.A. 60-501 which reads:

'The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.'

It is readily seen that the limitation of time for commencing civil actions is exclusively governed by the provisions of Article 5, except where a different limitation is specifically provided by a statute. By no stretch of the imagination can 38-101 be considered a statute specifically providing for a different limitation.

K.S.A.1970 Supp. 38-101 is the initial section of Chapter 38 dealing with infants. It defines the period of minority and the effect of marriage on a person eighteen years of age. It confers the capacity to sue and be sued on such a person. It does not specifically or otherwise prescribe a limitation of time for commencing any civil action.

The notes of the Advisory Committee in Gard, Kansas Code of Civil Procedure Annotated, § 60-501, read:

'This article is intended to be complete in scope, but it must be recognized, without enumeration, that there are, scattered through other statutes covering substantive law, specified limitations which are not to be disturbed.' (p. 516).

See, also, 5 Vernon's Kansas Statutes Annotated, Code of Civil Procedure, § 60-501, p. 2.

The scope of Article 5 was considered by this court in the recent case of In re Estate of Wood, 198 Kan. 313, 424 P.2d 528, wherein the nonclaim statute of the Probate Code (K.S.A. 59-2239) was held to be a statute of limitation and within the purview of the exception expressed in 60-501, supra. In that case it was said:

'Article 5 of the code of civil procedure dealing with limitations of actions contains twenty-one separate sections relating to various types of claims and special groups of individuals such as those under legal disability. The first section of the article, K.S.A. 60-501, provides that the article shall govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute. This leads us to the question of whether the nonclaim statute, K.S.A. 59-2239, is a statute of limitations as contemplated in the above exception. We believe it is. * * *' (p. 316.)

Applying the rationale of In re Estate of Wood, supra, to the instant case, the import of 38-101 is to confer rights of majority and capacity to sue upon certain conditions. It is not a statute of limitation and thus is not within the purview of the exception expressed in 60-501.

As an integral part of Article 5, and under the declaration of scope in 60-501, section 60-515, supra, exclusively governs the tolling of the statute with respect to persons under legal disability. The specifically declared disability of being within the age of twenty-one years, under the literal meaning of the statute, can be removed only by attaining the age of twenty-one years. Marriage, under the terms of 38-101, may bestow rights of majority on a person but it does not alter his age. K.S.A1970 Supp. 60-515 speaks only to the disability of being within twenty-one years of age, no reference is made to either minority or majority.

K.S.A. 60-515 (now 1970 Supp.), was enacted as a part of the new Code of Civil Procedure and became effective January 1, 1964. It replaced G.S.1949,...