Miller v. Fallon

• Citation: 183 A. 416
• Parties: MILLER v. FALLON.
• Decision Date: 03 February 1936
• Court: Maine Supreme Court

183 A. 416

MILLER

v. FALLON.

Supreme Judicial Court of Maine.

Feb. 3, 1936.

Report from Superior Court, Kennebec County.

Action on the case by Samuel L. Miller against Louis F. Fallon. On report to the Supreme Judicial Court on agreed statement of facts.

Cause remanded.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Carleton & Donovan, of Augusta, and Clifford & Clifford, of Lewiston, for plaintiff.

Locke, CampbeH"& Reid, of Augusta, for defendant.

STURGIS, Justice.

This is an action on the case to recover compensation for losses suffered by the plaintiff as a result of alleged malpractice by the defendant, a practicing physician and surgeon. The defendant having seasonably pleaded the statute of limitations, by consent of the parties the case is reported on an agreed statement of facts.

The report shows that on November 18,

1929, the defendant operated on the plaintiff for hemorrhoids, and, until January 9,

1930, following, continued with postoperative treatment. It is agreed that the acts and omissions of alleged malpractice charged in the writ occurred between November 18, 1929, and January 15, 1930, which confines the accrual of the plaintiff's cause of action, if any, to that period. This suit was begun on August 15, 1935, and duly entered at the return term.

The general statute of limitations in force when this malpractice is alleged to have been committed barred the maintenance of any action of assumpsit or upon the case founded upon any contract or liability, express or implied, and all other actions on the case except for slanderous words and for libel, if not commenced within six years after the cause of action accrued.

Revised Statutes (1916) c. 86, § 85. Actions for assault and battery and for false imprisonment, slander and libel, were then barred unless commenced within two years after the cause of action accrued. R. S. (1916) c. 86, § 87. These limitations upon personal actions were embodied without change in the next revision of statutes. Revised Statutes (1930) c. 95, §§ 90, 92.

By Public Laws 1931, c. 62, approved March 20, 1931, and effective July 2, 1931, the time allowed for the commencement of actions for malpractice, which had previously been governed by the general law, was reduced to two years by an amendment adding this class of actions to R.S. c. 95, § 92, which now reads:

"Actions for assault and battery, and for false imprisonment, slander, and libel, and malpractice of physicians and all others engaged in the healing art, shall be commenced within two years after the cause of action accrues."

The defendant invokes this statute and, on the brief, argues that it should be construed as retroactive, barring the plaintiff's suit upon this cause of action which accrued prior to the passage of the law and upon which suit was postponed until after the new limitation had expired.

There can be no well-grounded dissent from the settled rule that the Legislature has full power and authority to regulate and change the form of remedies in actions if no vested rights are impaired or personal liabilities created. There is no constitutional inhibition against the enactment of retroactive legislation which affects remedies only. Soper v. Lawrence Bros. Co., 98 Me. 268, 56 A. 908, 99 Am. St. Rep. 397; MacNichol v. Spence, 83 Me. 87, 21 A. 748; Berry v. Clary, 77 Me. 482,

I A. 360; Inhabitants of York v. Goodwin, 67 Me. 260; Sampson v. Sampson, 63 Me. 328, 333; Proprietors of Kennebec Purchase v. Laboree, 2 Greenl. (2 Me.) 275, 293,

11 Am.Dec. 79. Statutes of limitation fall within this rule. They are laws of process, and, where they do not extinguish the right itself, are deemed to operate on the remedy only. Lamberton v. Grant, 94 Me. 508, 518, 48 A. 127, 80 Am.St.Rep. 415; Lunt v. Stevens, 24 Me. 534, 537; Mason v. Walker, 14 Me. 163, 166; Proprietors of Kennebec Purchase v. Laboree, supra. It is equally well settled that statutes of limitation may be made applicable to existing rights and causes of action, provided a reasonable time is allowed for the prosecution of claims thereon before the right to do so is barred. Carpenter v. Hadley, 118 Me. 437, 440, 108 A. 679; Sopcr v. Lawrence Bros. Co., supra, affirmed 201 U.S. 359, 26 S.Ct. 473, 50 L.Ed. 788; MacNichol v. Spence, supra; Sampson v. Sampson, supra; Proprietors of Kennebec Purchase v. Laboree, supra; Cooley's Const. Lim. (7th Ed.) 523; Lewis' Sutherland, Stat. Const. (2d Ed.) vol. 2, § 706; Wood on Lim. of Action, vol. L § 11.

It does not follow, however, that, because the Legislature possessed the power to enact a retroactive statute of limitations, it did so in the passage of the amendment under consideration. The language of that act is general and makes no reference to causes of action which had already accrued. It contains no provision expressly embracing causes of action which had accrued prior to its passage as in the statute construed in Quimby v. Buzzell, 16 Me. 470. There is no saving clause expressly exempting such causes of action from its operation, indicating a legislative intent to make it apply only to future actions, as in Weymouth v. Gorham, 22 Me. 385. Nor is a period provided for the presentation of accrued claims after the passage of the act, clearly demonstrating an intention to make the new limitation effective upon such claims, as in Sampson v. Sampson, supra, and Soper v. Lawrence Bros. Co., supra.

Barren of such express commands or convincing implications, the limitation cannot be deemed to have been intended to be retroactive. It must be construed by the fundamental rule of statutory construction strictly followed by this court that all statutes will be considered to have a prospective operation only, unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used. Carpenter v. Hadley, supra; Dyer v. Belfast, 88 Me. 140, 33 A. 790; Deake's Appeal, 80 Me. 50, 12 A. 790; Rogers v. Greenbush, 58 Me. 395, 397; Cooley's Const. Lim. 455; Endlich on Inter, of Stat. 271, 279; Wood on Lim. of Action (2d Ed.) vol. 1, p. 41.

In Hathaway v. Merchants' Loan & Trust Co., 218 Ill. 580, 75 N.E. 1060, 1061, 4 Ann.Cas. 164, that court said:

"While it is undoubtedly within the power of the Legislature to pass a statute of limitations or to change the period of limitation previously fixed and to make such statute or changes applicable to existing causes of action, yet such a statute is not to be readily construed as having a retroactive effect, but is generally deemed to apply merely to causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the Legislature to make the statute retroactive. * * * The statute will only be given a retroactive effect when it was clearly the intention of the Legislature that it should so operate. * * * And even where this intention clearly appears, it will not be given effect, if to do so would sender it unreasonable or unjust. If a reasonable time is given for bringing a suit or filing claims after the amendment takes effect, it may be valid and binding. * * *

"The plaintiffs in error contend that, as there were about 8 months after the act was approved and 6 months and 13 days after it took effect within which the defendant in error could have filed its claim, this was a reasonable time, and that the new limitation should prevail. The act must be applied generally to all claims and to all estates. A single claim or a single estate cannot be pointed out in which the act applies, and then say it does not apply to any other claim or to any other estate. If an estate had been pending for more than one year at the time the amendment went into effect, then all outstanding claims which had not been filed in the probate court would be entirely cut off, as far as the statute is concerned, without any opportunity to recover against the estate unless an equitable rule was applied. If an estate had been pending less than a year at the time the amendment went into effect, then the time within which claims might be filed would be cut down all the way from one day to one year. Applying the rule of uniformity to this amendment, we cannot say that a reasonable time was left creditors in which to file claims, or that it was the intention of the Legislature that the amendment should be retroactive."

The application of this last observation to the limitation we are considering is obvious. Giving the limitation a retroactive effect would bar actions of malpractice which had accrued more than two years before it went into effect and cut down the time in which actions which had accrued within two years could be begun all the way from one day to two years. Hathaway v. Merchants' Loan & Trust Co. is affirmed in George v. George, 250 Ill. 251, 95 N.E. 167. The principles there enunciated are reviewed and adopted in Adams & Freese Co. v. Kenoyer et al, 17 N.D. 302, 116 N.W. 98, 16 L.R.A.(N.S.) 681.

In Casto v. Greer, 44 W.Va. 332, 30 S.E. 100, 101, that court said:

"A cardinal rule in interpreting statutes is to construe them as prospective in operation in every instance, except where the intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied from the language of the statute, which would be inoperative otherwise than retrospectively. In doubt it should be resolved against, rather than in favor of, retrospective operation. * * * 'Statutes of limitations are no exceptions to the rule that statutes are prima facie to be given only prospective operation.' * * *

"The provision relied on in this case is contained in chapter 4, Acts 1895, re-enacting section 2, c. 123, Acts 1891, being section 2, c. 74, Code, and is in these words: 'But if such transfer or charge be admitted to record within eight months after it is made, then such suit to be...