Handlin v. Burchett

• Decision Date: 20 February 1917
• Citation: 192 S.W. 1016,270 Mo. 114
• Parties: SHERMAN HANDLIN, Appellant, v. EDWIN BURCHETT
• Court: Missouri Supreme Court

192 S.W. 1016

270 Mo. 114

SHERMAN HANDLIN, Appellant, v. EDWIN BURCHETT

Supreme Court of Missouri, First Division

February 20, 1917

Appeal from Putnam Circuit Court. -- Hon. George W. Wanamaker Judge.

Reversed and remanded.

Platt Hubbell, Geo. H. Hubbell and John C. McKinley for appellant.

(1) Two years is the period of limitations in Iowa for malpractice -- except for plaintiff's minority. Code of Iowa secs. 3447, 3453; Fadden v. Satterlee, 43 F. 568. Plaintiff has one year after attaining his majority -- one year after August 14, 1911 -- within which to file this suit. Since plaintiff filed his suit on August 12, 1912, he has brought his suit within the legal time and has a right to maintain his action in Missouri. Two days before the expiration of the one year, is just as good in law as two months. Tucker v Stewart, 147 Iowa 294. (2) An action for malpractice is transitory and may be prosecuted any where the defendant can be found. 22 Am. & Eng. Ency. Law, p. 1378; Steed v Harvey, 18 Utah 367; Bryant v. McClure, 44 Mo.App. 554; R. S. 1909, sec. 1754. The Iowa statute of limitations governs. R. S. 1909, sec. 1895. (3) Filing of the petition, alone, avoids the bar of limitation. McGrath v. Railroad, 128 Mo. 1; McCormick v. Clopton, 150 Mo.App. 129; Mound City v. Castleman, 187 F. 925; R. S. 1909, sec. 1756; State ex rel. Brown v. Wilson, 216 Mo. 292.

Wade, Dutcher & Davis, N. A. Franklin and E. M. Harber for respondent.

A cause of action for personal injury is barred in two years. Code of Iowa (1897), sec. 3447. The plaintiff by voluntarily dismissing his action in Iowa where the court had jurisdiction, could not recommence it there, and said cause of action ceased to exist anywhere. Code of Iowa (1897), sec. 3455; McCoy v. Railway, 134 Mo.App. 622. The voluntary dismissal of the plaintiff's cause of action in Iowa was negligent within the meaning of Sec. 3455, Code of Iowa (1897); Archer v. Railway Co., 65 Iowa 611. If the plaintiff had the right to commence his suit in Missouri at the time he did by negligently thereafter dismissing his cause of action in Iowa he destroyed his cause of action and he cannot have judgment on a destroyed cause of action in the State of Missouri. Sec. 1895, R. S. 1909.

OPINION

GRAVES, J.

Plaintiff sues the defendant, a physician, for malpractice. The suit was brought in the Putnam Circuit Court by the filing of a petition on August 12, 1912. For the determination of the single question involved here, a very short statement will suffice. Both plaintiff and defendant are residents of Iowa. On June 5, 1908, when seventeen years old, the plaintiff suffered an injury by way of a fracture of the femur in his right leg. Defendant treated him for that injury. Plaintiff became of age August 14, 1911. In May, 1912, the plaintiff sued the defendant on the same cause of action in the district court of Wayne County, Iowa. By answer the defendant avers, among other things:

"That said cause was continued in said district court of Wayne County, from time to time, until the 19th day of December, 1912, when plaintiff voluntarily and negligently dismissed and failed and refused to prosecute same."

The defendant duly plead the several statutes of Iowa as to limitations for bringing actions in that State and paragraph 3 of section 3447, Statutes of Iowa 1897, reads:

"Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years; and those brought to set aside a will, within five years from the time the same is filed in the clerk's office for probate and notice thereof is given."

Defendant urges that the only modification of this paragraph 3 of section 3447, is found in section 3455 of said statutes, which reads:

"If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, he held a continuation of the first."

The defendant urges that by reason of the dismissal of the suit in Iowa that fact alone finally terminated plaintiff's cause of action, and says that by reason of our statute, section 1895, Revised Statutes 1909, he cannot maintain a suit in this State. Said section 1895, reads:

"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."

By reply plaintiff averred that said section 3455, supra, of the Iowa Code, had no application to his case, because he was a minor, and had one full year after reaching his majority to bring his action, and had this right, irrespective of such section. Plaintiff plead specifically section 3453 of the Iowa Code, reading thus:

"The times limited for actions herein, except those brought for penalties and forfeitures, shall be extended in favor of minors and insane persons, so that they shall have one year from and after the termination of such disability within which to commence said action."

Defendant filed motion for judgment on the pleadings and this motion was sustained and judgment entered for defendant. From such judgment the plaintiff brings this appeal.

I. The cause of action having originated in the State of Iowa if it was barred in that State, when instituted in this State, there can be no recovery by the plaintiff. Our statute, section 1895, Revised Statutes 1909, quoted in the statement of facts, settles this question, and it is not contended otherwise by distinguished counsel for plaintiff. We start our consideration of the case with this question out of the way. Other questions must abide the construction of the Iowa laws.

II. This whole matter turns upon the question as to whether or not under the Iowa laws the plaintiff had a live cause of action, and one which could have been enforced in Iowa at the time he instituted his suit in Missouri. If under the Iowa laws he had lost the right of action, in Iowa prior to August 12, 1912 (the date of filing his suit in Missouri), he has no right of action here.

By the third clause of section 3447, Code of Iowa 1897, an action for malpractice as to adults is barred in two years. [Fadden v. Satterlee (Iowa case), 43 F. l.c. 569.]

It is not seriously contended, however, that this statute is not tolled by the provisions of section 3453, in so far as minors and insane persons are concerned. The clear reading of the law shows that the minor has one full year in which to bring his action after attaining his majority. This matter does not seem to be seriously disputed by able counsel for the defendant. They state their position thus:

"Our theory of this statute is that the only right it conferred upon the plaintiff during the year next following his majority was the right to commence his action, and when he commenced his action in Iowa he exhausted every right which the laws of Iowa gave him except the right to prosecute said action so commenced to final determination. This statute did not confer upon him the right to commence and dismiss his action as many times as he saw fit during the year following his majority."

We regret that we have no express ruling from the Supreme Court of Iowa upon the point urged. In the absence of such we will have to give our own construction to the statutes. We do not agree with defendant, that the only right conferred by section 3453 of the Iowa Code is the mere right of ...