Matthews v. Travelers Indem. Ins. Co.

Decision Date30 September 1968
Docket NumberNo. 5--4656,5--4656
Citation245 Ark. 247,432 S.W.2d 485
PartiesW. W. MATTHEWS, Administrator, Appellant, v. TRAVELERS INDEMNITY INSURANCE COMPANY, Appellee.
CourtArkansas Supreme Court

Garner & Parker, Ft. Smith, for appellant.

Crouch, Blair & Cypert, Springdale, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action for malpractice brought by the appellant, as administrator of his deceased wife's estate, against the appellee as the insurer of a nonprofit corporation that operates a testing laboratory in Fayetteville. The trial court sustained a demurrer to the complaint on the ground that the causes of action asserted by the administrator were barred by limitations. This appeal is from the ensuing order of dismissal.

The complaint alleges that on September 6, 1964, Mrs. Matthews underwent an operation for the removal of suspect tumorous tissue. During the operation samples of the tissue were sent to the laboratory, which reported on September 14 that the tissue was not cancerous. The patient's condition worsened to such an extent that on January 22, 1965, her attending physician ordered a re-examination of the tissue. On January 29 the laboratory reported that it had made a mistake--that Mrs. Matthews actually was suffering from a malignancy. The complaint asserted that as a result of the laboratory's negligence Mrs. Matthews's condition so deteriorated that she was beyond medical help; that she suffered great mental and physical anguish prior to her death on November 28, 1965; and that the plaintiff was thereby damaged in the sum of $100,000. The suit was filed on June 14, 1967.

In sustaining the defendant's demurrer the trial court applied the two-year statute of limitations governing medical malpractice, which provides that the date of the accrual of the cause of action shall be '(the) date of the wrongful act complained of, and no other time.' Ark.Stat.Ann. § 37--205 (Repl.1962). If that is the controlling statute, then the filing of the suit on June 14, 1967, was too late, whether the wrongful act occurred on September 14, 1964, the date of the first examination of the tissue, or on January 29, 1965, the date on which the mistake was corrected.

Contrariwise, the appellant insists that the case is governed by the wrongful death statutes, which provide that the action shall be commenced within three years after the death of the person alleged to have been wrongfully killed. Ark.Stat.Ann. §§ 27--906 and 27--907 (Repl.1962). In that view the action was timely, because death occurred on November 28, 1965, and the suit was brought on June 14, 1967.

In our opinion each statute is partly controlling. It is essential to recognize that two separate causes of action are being asserted by the appellant in his capacity as administrator of his deceased wife's estate. The complaint seeks in part to recover compensation for the physical and mental anguish suffered by Mrs. Matthews before her death. At common law that cause of action would not have survived the death of Mrs. Matthews, but under our survival statute it may be asserted by her personal representative. Ark.Stat.Ann. § 27--901. In that situation the personal representative is asserting the decedent's cause of action and must therefore bring suit within the period allowed by that statute of limitations which would have governed if the injured person had not died. Smith v. Missouri Pac. R.R., 175 Ark. 626, 1 S.W.2d 48 (1927)....

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31 cases
  • Russell v. Ingersoll-Rand Co.
    • United States
    • Texas Supreme Court
    • 14 Octubre 1992
    ...1232 (Ala.1983), citing Ellis v. Black Diamond Mining Co., 268 Ala. 576, 109 So.2d 699, 702 (1959); Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485, 488 (1968) (action not barred at time of death), adopting the holding in Hicks v. Missouri Pac. R.R. Co., 181 F.Supp. 648 ......
  • Dickens v. Puryear
    • United States
    • North Carolina Supreme Court
    • 7 Abril 1981
    ...be that the longer statute is to be selected. See, e. g., Payne v. Ostrus, 50 F.2d 1039 (8th Cir. 1931); Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968); Scovill v. Johnson, 190 S.C. 457, 3 S.E.2d 543 (1939); Shew v. Coon Bay Loafers, Inc., 76 Wash.2d 40, 455 P......
  • Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007)
    • United States
    • Missouri Court of Appeals
    • 31 Julio 2007
    ...death action by his beneficiaries."). 9. Simmons First Nat'l. Bank v. Abbott, 705 S.W.2d 3 (Ark. 1986); Matthews v. Travelers Indem. Ins. Co., 432 S.W.2d 485 (Ark. 1968). 10. Fountas v. Breed, 455 N.E.2d 200 (Ill. App. Ct. 11. Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (D.C.Ill. 19......
  • Smith v. Brown & Williamson Tobacco Corp.
    • United States
    • Missouri Court of Appeals
    • 16 Diciembre 2008
    ...action by his beneficiaries."). 9. Simmons First Nat'l. Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986); Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968). 10. Fountas v. Breed, 118 Ill.App.3d 669, 74 Ill.Dec. 170, 455 N.E.2d 200 11. Schlavick v. Manhattan Brewing......
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