Lowery v. Statewide Healthcare Service, Inc.
| Decision Date | 11 September 1991 |
| Docket Number | No. 89-CA-1145,89-CA-1145 |
| Citation | 585 So.2d 778 |
| Parties | Joy H. LOWERY (Westbrook), Randy Dale Lowery and Danny Michael Lowery v. STATEWIDE HEALTHCARE SERVICE, INC. and Fannie Rue Russell. |
| Court | Mississippi Supreme Court |
Billie J. Graham, Leonard B. Melvin, Jr., Melvin & Melvin, Laurel, Lamar Conerly, Jr., Hazlehurst, for appellants.
J. Carter Thompson, Jr., Butler Snow O'Mara Stevens & Cannada, Leslie J. Bobo, Butler Snow Firm, Jackson, for appellees.
En Banc.
Joy H. Lowery, et al. appeal the dismissal of their complaint against Statewide Healthcare Service, Inc. and Fannie Rue Russell in First Judicial District of Hinds County Circuit Court because the claim is barred by Miss.Code Ann. Sec. 15-1-36, a two-year statute of limitations. Plaintiffs argue on appeal that Miss.Code Ann. Sec. 15-1-49, the general six-year statute, applies. We find the circuit court interpretation correct and affirm.
Robert and Joy H. Lowery as parents, and minors Randy Dale and Danny M. Lowery as siblings, and the sole surviving heirs-at-law of James R. Lowery, minor decedent, filed a malpractice suit October 29, 1982, in the circuit court of the First Judicial District of Hinds County. The named defendants were:
(1) Anthony B. Petro, M.D., individually and as a professional corporation;
(2) Glen C. Warren, M.D.;
(3) Patrick L. Lillard, M.D.;
(4) M.D. Hardy, Jr., M.D.;
(5) Barry D. Aden, M.D., individually and as a professional corporation; and
(6) Board of Trustees of the Mississippi Baptist Medical Center.
We omit the factual allegations upon which suit was based and all the trial proceedings and skirmishes which are unnecessary to our decision.
All the physicians were dismissed as defendants on a summary judgment.
By a May 5, 1986, order, the circuit judge sustained plaintiffs' motion to amend their pleadings by naming the medical center as a party defendant, and adding Fannie Rue Russell and Upjohn Health Care Services, Inc., as defendants. Upjohn was an incorrect name for this corporate defendant, which should have been named Statewide Healthcare Service, Inc., an error subsequently corrected in the pleadings. The amended complaint alleged that the medical center had contracted with Statewide to furnish nursing personnel to the medical center's hospital in its daily operation, and the latter had the duty to provide reasonably competent nurses and other medical personnel to assist in the treatment of the hospital's patients. The amended complaint alleged that Russell was a nurse employee of Statewide and had the nursing care of James R. Lowery, who subsequently died on October 30, 1980. The amended complaint further charged Russell with negligent care and treatment of her patient, which was a proximate cause of his death.
Statewide and Russell filed a motion for judgment on the pleadings on July 27, 1987, or for summary judgment on the ground that under the two-year limitation period of Miss.Code Ann. Sec. 15-1-36 (Supp.1986) the suit was time barred as to them. On December 10, 1987, the circuit judge dismissed the suit as to Russell, and in January, 1988, dismissed the suit as to Statewide, rejecting the argument of the plaintiffs that Miss.Code Ann. Sec. 15-1-49, the six-year statute, applied as to this defendant.
The only issue on this appeal is whether Sec. 15-1-36 the two-year statute of limitation, or Miss.Code Ann. Sec. 15-1-49 applied as to Russell and Statewide. Section 15-1-49 states:
All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.
This is a Mother Hubbard statute covering other claims and causes of action not specifically covered by other statutes of limitations.
Miss.Code Ann. Sec. 15-1-36 as enacted and as amended until 1983, provided:
(1) No claim in tort may be brought against a licensed physician, osteopath, dentist, hospital or nurse ... for injuries arising out of the course of medical and/or surgical treatment unless it is filed within two (2) years from the date of the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. However, if at the time at which the cause of action shall, or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall be under the disability of infancy or unsoundness of mind, then such person or the person claiming through him may, notwithstanding that the period or time hereinbefore limited shall have expired, commence action on such claim at any time within two (2) years next after the time at which the person to whom the right shall have first accrued shall have ceased to be under either disability or shall have died, whichever shall have first happened. 1
The plaintiffs' argument that Miss.Code Ann. Sec. 15-1-36 did not apply to Russell is clearly without merit, because the statute specifically names nurses among those covered.
The plaintiffs argue that Statewide is not specifically named in the statute therefore it does not apply to them. The circuit judge, however, found that its liability was predicated solely upon the doctrine of respondeat superior, and that the bar of the suit against its employee and agent Russell likewise barred the action as to Statewide. We agree.
It is true that the plaintiff could have filed suit solely against the employer Statewide, and there was no necessity to join Russell as a party defendant their liability being joint and several. Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216 (1941); Mississippi Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376 (1934); Thomas v. Rounds, 161 Miss. 713, 137 So. 894 (1931); see also, Causey v. Burgess, 236 F.Supp. 326, 327 (E.D.S.C.1964).
This does not mean, however, that the plaintiffs could wait until the action was time barred as to Russell, the agent, and then file an action against Statewide, whose sole liability was based upon the conduct of its servant and agent. In Mississippi law there is no distinction between right and remedy. Miss.Code Ann. Sec. 15-1-3 (1972) states:
The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy. However, the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon.
Under this statute, therefore, Miss.Code Ann. Sec. 15-1-36 bars both the right of action of the plaintiffs' against Russell and Statewide and also bars any remedy against both parties.
In this case Statewide's sole basis for liability is the fact that it was Russell's employer. It is generally held that a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent. According to 54 C.J.S. Limitations of Actions Sec. 15:
An agent may be protected by the statute of limitation in respect of personal liability and a statute of limitation that bars a claim against an agent equally protects those on whose behalf he acted as agent.
3 Am.Jur.2d Agency Sec. 348 (1962) also reads:
However, a statute that bars a claim against an agent equally protects those in whose behalf he acted as agent, where there are no circumstance of equity to prevent the operation of the statute in their favor; and the concealment of the fact of agency where there is no fraud on the part of the principals does not constitute such a circumstance.
See also, Ware v. Galveston City Co., 111 U.S. 170, 174, 4 S.Ct. 337, 339, 28 L.Ed. 393 (1883); Wilhelm v. Traynor, 434 So.2d 1011, 1013 (Fla.App. 5 Dist.1983); Hewett v. Kennebec Valley Mental Health Association, 557 A.2d 622, 624 (Me.1989). This case is time barred as Statewide and Russell were first made party defendants on May 2, 1986, well over two years after the cause of action accrued.
We accordingly affirm dismissal of the suit against Russell and Statewide as time barred.
AFFIRMED.
BANKS, J., not participating.
I concur with the majority that the Lowerys are barred from proceeding against Fannie Rue Russell pursuant to Miss.Code Ann. Sec. 15-1-36 (Supp.1980), due to the expiration of the two year statute of limitation. I dissent from the majority's finding that the Lowerys are time barred from proceeding against Statewide Healthcare Service, Inc., because I am convinced that in this case Statewide may not claim the protection of Miss.Code Ann. Sec. 15-1-36 which benefited its agent and because the Lowerys asserted a claim against Statewide which was not based on the theory of respondeat superior.
Under the medical malpractice limitations statute, the Lowerys had two (2) years from the date of their son's death to bring suit against "a licensed physician, osteopath, dentist, hospital, nurse, pharmacist or podiatrist for injuries arising out of the course of medical or surgical treatment...." Miss.Code Ann. Sec. 15-1-36 (Supp.1980). This two year period is significantly shorter than the six (6) year period which would otherwise govern this action. Miss.Code Ann. Sec. 15-1-49 (1972). 1
Ms. Russell certainly is a member of the class of nurses. Therefore, there is no question but that she may claim the benefit of this time limitation.
Statewide, however, may not. The legislature did not intend Sec. 15-1-36 to apply to an agency,...
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