Guthrie v. Wilson

Decision Date02 May 1958
Docket NumberNo. 18964,18964
PartiesKent GUTHRIE, a minor, by T. K. Guthrie, his next friend, Appellant, v. Ralph WILSON, Appellee. *
CourtIndiana Appellate Court

F. Wendell Lensing, Evansville, Leroux & Weber, Cincinnati, Ohio, for appellant.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Howard C. Sandusky, Evansville, Stump & Emswiller, Indianapolis, for appellee.

COOPER, Judge.

The appellant, Kent Guthrie, a minor, by his father and next friend, filed a complaint against the appellee, Ralph Wilson, in the Vanderburgh Superior Court on the twelfth day of November, 1954, for malpractice, averring among other things that the appellee was consulted professionally on August 22, 1937, for the purpose of treating a small growth appearing at the top of the right ear of the appellant; that said growth was diagnosed by the appellee as a blood tumor, and that the appellee attempted to remove the same by radium treatment, and that the appellee was negligent in his treatment of the appellant in the following particulars: The application of an excessive quantity of radium, the application of the radium for unreasonable and excessive lengths of time, the application of radium to the ear too frequently to avoid damage to the tissues thereof. That in August, 1946, a five-stage plastic surgery operation (grafting of living flesh to the alleged damaged ear) was started which was completed in October, 1947; that because of said negligent practices, the appellee suffered continuous pain, inconvenience and disfigurement for approximately seventeen years.

On the 26th day of January, 1955, the appellee filed a demurrer to the appellant's complaint upon the following statutory grounds that said complaint wholly fails to state facts sufficient to constitute a cause of action against the said defendant because of § 2-627, Burns' Ind.Stat., 1946 Replacement, limiting the time to two years within which malpractice actions must be brought. After argument of counsel, the submission of briefs and consideration by the court, the demurrer was sustained by the court on the 14th day of November, 1955.

Thereafter, the trial court ruled the appellant to plead over by July 26, 1956, or judgment would be granted for the appellee. The appellant elected to stand upon his pleading and refused to amend his complaint and the court rendered the following judgment in favor of the appellee:

'It is therefore considered and adjudged by the Court that the plaintiff take nothing in this action by way of his complaint and that the defendant recover his costs herein laid out and expended.'

From this judgment, the appeal is taken.

The assignment of errors questions the action of the trial court in sustaining the appellee's demurrer to the appellant's complaint, and (2) rendering judgment for the appellee.

The question before us, apparently one of first impression, revolves about separate Indiana Statutes of Limitations, which we are called upon to construe. One was enacted by the General Assembly in 1941 and established a special limitation on causes of action based upon malpractice. This statute, being Ch. 116, p. 328, Acts 1941, the same being § 2-627, Burns' Ind.Stat., 1946 Replacement, provides:

'No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless such action is filed within two (2) years from the date of the act, omission or neglect complained of.'

Another statute, being the general act of limitations on causes of action, is Ch. 38, p. 247, § 42, Acts 1881, 'Special Session', the same being § 2-605, Burns' Ind.Stat., 1946 Replacement, which provides:

'Any persons being under legal disabilities when the cause of action accrues may bring his action within two (2) years after the disability is removed.'

Chapter 38 of the aforesaid Acts of 1881, § 857, the same being § 2-4701, Burns' Ind.Stat., 1946 Replacement, provides:

'In the construction of this act, the following rules shall be observed, when consistent with the context: * * * (Sixth) The phrase 'under legal disabilities' includes persons within the age of twenty-one (21) years, or of unsound mind, or imprisoned in the state prison, or out of the United States.'

It is the appellant's contention in this appeal that the 1941 Statute of Limitations when it says, 'No action of any kind shall be brought for malpractice after two years,' does not apply to persons 'under legal disabilities', as provided for in §§ 2-605 and 2-4701, Burns' Ind.Stat.Anno., 1946 Replacement, the reasons being that the Statute of Limitations in question, Burns' § 2-627, should not be construed as being applicable to a cause of action which arose prior to the enactment of the statute, unless it clearly appears by express language or necessary implication that the Legislature so intended the statute to have that effect. With this contention, we must agree. See Niklaus v. Conkling, 1888, 118 Ind. 289, 20 N.E. 797; Citizens' Bank of Noblesville v. Julian, 1899, 153 Ind. 655, 55 N.E. 1007.

The only decision we can find interpreting the foregoing statutes in the decision in the case of Burd v. McCullough, 7 Cir., 1954, 217 F.2d 159, 162, wherein the Circuit Court of Appeals held:

'Applying the Indiana authorities to the case at bar, we are led to the conclusion that the 1941 Act repeals the 1881 Act to the extent of malpractice actions.'

This court, however, is not bound by the holding of the Circuit Court of Appeals as we follow and are bound by the decisions of the Supreme Court of our state.

It is the general rule of law that the part of the 1881 Act, preserving the rights of action of persons under disability, must be read with the 1941 limitation on malpractice actions. Starr v. City of Gary, 1934, 206 Ind. 196, 188 N.E. 775; Snyder v. Thieme & Wagner Brew. Co., 1910, 173 Ind. 659, 90 N.E. 314; Hester v. Town of Greenwood, 1909, 172 Ind. 279, 88 N.E. 498. Also, if possible, the two statutes must be harmonized. Rosenbloom v. Hutchins, 1944, 222 Ind. 590, 55 N.E.2d 315; Wayne Township v. Brown, 1933, 205 Ind. 437, 186 N.E. 841; Kramer v. Beebe, 1917, 186 Ind. 349, 115 N.E. 83.

It appears, reading these two Acts together, we see that neither is ambiguous and that they are clearly inconsistent. One says that any persons under disability may bring action within two years after the disability is removed. The other says that 'no action of any kind' shall be brought for malpractice more than two years after the act complained of. If we give effect to either statute the other will be limited to that extent. Our Supreme Court has held that when two statutes are in conflict, the later in time shall control. See Hamilton County Council v. State ex rel. Groff, 1949, 227 Ind. 608, 87 N.E.2d 810; Brumfield v. State ex rel. Wallace, 1934, 206 Ind. 647, 190 N.E. 863; Newbauer v. State, 1928, 200 Ind. 118, 161 N.E. 826; Stiers v. Mundy, 1910, 174 Ind. 651, 92 N.E. 374; Cleveland v. Emerson, 1912, 51 Ind.App. 339, 99 N.E. 796. It has also been held that a statute limited to a specific situation will repeal a general statute to the extent that they are inconsistent. See Daly v. Carr, 1934, 206 Ind. 554, 190 N.E. 429 and 612; Western & Southern Indemnity Co. v. Cramer, 1937, 104 Ind.App. 219, 10 N.E.2d 440.

In our state, the general rule of law in construing statutes is that courts look to the entire statutory structure upon the subject involved for the purpose of ascertaining the legislative...

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2 cases
  • Indiana Tel. Corp. v. Public Service Commission of Ind.
    • United States
    • Indiana Appellate Court
    • December 14, 1960
    ...effect that the Commission was authorized to determine legal rates 'to be imposed, observed and followed in the future.' Guthrie v. Wilson, Ind.App. 1958, 149 N.E.2d 841; Niklaus et al. v. Conkling, 1888, 118 Ind. 289, 20 N.E. 797 (Elliott, C. J.); Public Utilities Commission of Ohio v. Uni......
  • Guthrie v. Wilson, 29863
    • United States
    • Indiana Supreme Court
    • November 10, 1959
    ...court sustained the demurrer and from the judgment rendered thereon appeal was taken to the Appellate Court, whose opinion appears in 149 N.E.2d 841. The case is before us on petition to Appellant's complaint for malpractice filed November 12, 1954, alleges that in August of 1937, when appe......

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