Jepson v. Stubbs

Decision Date12 September 1977
Docket NumberNo. 59803,59803
PartiesThomas E. JEPSON, Appellant, v. James S. STUBBS, Respondent.
CourtMissouri Supreme Court

Arthur A. Benson, II, Kansas City, for appellant.

Dean F. Arnold, Kansas City, for respondent.

FINCH, Presiding Judge.

This is an appeal from a summary judgment in a negligence action wherein Thomas E. Jepson, hereinafter referred to as plaintiff, sought actual and punitive damages from James S. Stubbs, hereinafter referred to as defendant, his former attorney, for alleged negligence in connection with his representation of plaintiff on a charge of refusing to submit to induction into military service. The appeal was taken to this court on the basis that some of the questions raised necessitate construction of federal and state constitutional provisions. While we do not reach those questions in deciding the case, we conclude that we do have jurisdiction. We affirm.

The record before us includes plaintiff's amended petition, defendant's answer thereto, a motion for summary judgment and a stipulation of facts. From those we recite the facts pertinent to our resolution of this appeal.

On January 16, 1967, plaintiff received from his local board of the Selective Service System an order to report for induction. He then requested classification as a conscientious objector. After a hearing, that request was denied and plaintiff was told to report February 17, 1967. He reported to the center as directed but refused to submit to induction. He then consulted with and retained defendant to represent him on anticipated federal charges based on his refusal to submit to induction.

Ultimately, defendant advised plaintiff that he had no defense to the charges. Relying on that advice, plaintiff waived indictment and on August 1, 1967, entered a plea of guilty to an information charging him with a violation of the Military Selective Service and Training Act. On September 8, 1967, he was sentenced to serve three years in the custody of the Attorney General of the United States. After serving nearly 18 months in a federal reformatory, he was released therefrom on March 4, 1969, and placed on parole. On September 7, 1970, he was released from parole.

On March 12, 1973, plaintiff consulted with another attorney concerning a pardon or other relief to restore his civil rights. In that conference he learned for the first time that there might have been a defect in the order to report for induction which could invalidate his conviction. He filed a petition for writ of coram nobis in the federal district court where his sentence had been imposed and on February 15, 1975, the judge announced his intention to sustain petitioner's motion for summary judgment, thereby setting aside plaintiff's conviction. The formal order was entered subsequently. Rather than appeal, the United States Attorney dismissed the original charge against plaintiff.

Plaintiff filed this suit for damages on August 18, 1975. In his petition he pleaded that although apparently his suit was barred by the five-year statute of limitations applicable to malpractice actions against attorneys (§ 516.120(4)), 1 such actually was not the case because § 516.170 provides that the statute of limitations is tolled for persons imprisoned during the period immediately subsequent to defendant's negligence. 2 Furthermore, alleged plaintiff, § 516.100 provides that a cause of action is not deemed to accrue until " * * * the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item (of damage) * * * ". On the basis of § 516.100, plaintiff contends alternatively that his cause of action did not accrue and the statute of limitations did not begin to run until September 7, 1970 (on the theory that he sustained the last item of damages when he was released from execution of his criminal sentence), or until March 12, 1973 (when he first discovered his attorney's negligence and the fact that he had a cause of action), or until April 15, 1975, when the federal court set aside the 1967 conviction on finding that plaintiff's guilty plea was not knowingly made (on the theory that an action against defendant would have been collaterally estopped prior to that date).

The trial court held that the five-year statute of limitations (§ 516.120(4)) did bar plaintiff's cause of action and that the running of the statute was not tolled by § 516.170 for the reason that plaintiff's incarceration was in a federal reformatory, not an institution within the department of corrections.

1. Did § 516.170 toll the statute of limitations?

Defendant argues, and the trial court evidently concluded, that § 516.170 is a reciprocal statute to § 222.010, known as the civil death act. 3 The latter statute provides for loss of civil rights by one convicted and sentenced to imprisonment in an institution within the department of corrections for a term less than life and for civil death for those sentenced to life imprisonment. Defendant reasons that § 516.170 was enacted to compensate for that loss by tolling the statute of limitations during the period of imprisonment. Since § 222.010 is limited in its application to persons sentenced to imprisonment in institutions of the department of corrections, defendant concludes that § 516.170 likewise is so limited and has no application to one imprisoned in a federal institution.

Defendant's premise that the two statutes were enacted as reciprocal statutes is untenable. The predecessor statute of what is now § 516.170 first appeared in chapter 43 of the territorial laws applicable to Missouri before it became a state. It was dated July 4, 1807. It continued to be a part of the applicable laws thereafter. It was not until 1835 that the statute which was the predecessor of § 222.010 was enacted. Crimes and Punishments, Mo.Rev.Stat. art. IX, § 19 (1835). Obviously, it was not the existence of this civil death statute which prompted enactment of the tolling statute. The two are not reciprocal statutes and it cannot be said that § 516.170 is limited to persons imprisoned in institutions of the department of corrections because the application of § 222.010 is limited to such persons.

We look, therefore, to the language of § 516.170 to determine its application. It states in general terms that one is under a disability which has the effect of tolling the statute of limitations when such person is " * * * imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, * * * ". Since the language is general, it apparently was intended to apply to all such imprisonment, regardless of what court imposes the sentence or where it is served. There is no language in § 516.170 to indicate otherwise. Furthermore, the language of the section makes it applicable to imprisonment on a criminal charge before conviction as well as to imprisonment which is in execution of a sentence imposed. That means that incarceration in jail pending trial on a criminal charge would toll the statute of limitations. This clearly confirms the conclusion that § 516.170 is not limited to imprisonment in institutions within the department of corrections.

Accordingly, we conclude and hold that imprisonment of plaintiff in a federal reformatory did result in tolling of the statute of limitations in accordance with § 516.170. 4 This conclusion is consistent with what this court said about the statute in question in Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339 (1921):

"The reason for the enactment of the statute quoted is obvious. One actually imprisoned or physically restrained is deprived of freedom of action. He cannot look after his affairs. It would be a denial of the equal protection of the law if one so restrained were not exempted from the operation of the general statute of limitations. * * * " 229 S.W. at 201.

However, even though § 516.170 was applicable and resulted in tolling of the statute of limitations during plaintiff's imprisonment in the federal reformatory, it did not toll the statute for a sufficient period of time to prevent plaintiff's cause of action from being barred. Plaintiff was imprisoned in the reformatory only until March 4, 1969, at which time he was released on parole. That was more than 5 years before suit was filed on August 18, 1975. Hence, unless § 516.170 also operated to toll the statute while plaintiff was on parole and until he was released therefrom on September 7, 1970, plaintiff is not entitled to maintain this action by reason of § 516.170.

Whether it was so tolled was answered in Hyde v. Nelson, supra. In that case plaintiff filed a libel suit on April 8, 1919, based on a newspaper article published on May 11, 1910. The two-year statute of limitations was applicable and barred the suit unless the statute was tolled under the provisions of § 1323, RSMo 1919 (now § 516.170). Plaintiff had been indicted for murder on March 5, 1910. He was admitted to bail on March 8, 1910, and remained at large until April 27, 1910. Plaintiff then was convicted but the judgment was appealed and was reversed and remanded on April 11, 1911. On April 26, 1911, plaintiff again was admitted to bail and he remained at liberty until April 9, 1917, when all indictments were dismissed. Plaintiff contended that he was under duress and in custody of the law and in effect was imprisoned on a criminal charge while he was out on bail. Consequently, he argued, the tolling statute was applicable during that time. This court ruled otherwise, saying that the word "imprisonment" in the statute is used in its plain, ordinary meaning and has reference to actually being confined in an institution. What the court said in holding that one on bail was not imprisoned as contemplated in the tolling statute applies to one at liberty on parole. Hence, plaintiff is not entitled to have the statute of limitation...

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