Shideler v. Dwyer
Decision Date | 03 March 1981 |
Docket Number | No. 381S55,381S55 |
Citation | 275 Ind. 270,417 N.E.2d 281 |
Parties | Shirley A. SHIDELER and Barnes, Hickam, Pantzer & Boyd, Appellants (Defendants Below), v. Mary Catherine DWYER, Appellee (Plaintiff Below). |
Court | Indiana Supreme Court |
Jon R. Pactor, Indianapolis, for appellee (plaintiff below).
This cause is before us upon the petition of the Defendants (Appellants), Shideler, et al. to transfer the cause from the Court of Appeals, First District, that Court having affirmed the denial by the trial court of Defendants' Motion for Summary Judgment by opinion at 386 N.E.2d 1211.
Transfer is now granted under Appellate Rule 11(B)(2)(c), in that there is a conflict between said decision and the decision of said Court in Cordial v. Grimm, (1976) 169 Ind.App. 58, 346 N.E.2d 266, in that the Court of Appeals, Third District, in Cordial v. Grimm, supra, held that the two year limitation statute Ind.Code § 34-4-19-1, was not limited to medical malpractice actions and is applicable to malpractice actions brought against members of the legal profession; whereas said Court, in the cause before us, held that it was not. We are in accord with the Court of Appeals, First District, upon this issue in its holding that the doctrine of ejusdem generis limits the application to the term "or others," as used in said statute, to others of the medical care community. Accordingly, Cordial v. Grimm, supra, is expressly overruled.
Nevertheless, the decision of the Court of Appeals, First District, herein is erroneous in that it held that, notwithstanding the occurrence of injury and damages, i. e. the existence of the plaintiff's right to sue the defendants, the statute limiting the time within which suit could be filed thereon did not commence to run until the entry of a judicial decree, in an action initiated by Plaintiff and to which the defendants were not parties, confirming the plaintiff's loss.
At the outset, it should be noted that the motion for summary judgment was addressed, in the main, to the issue of whether or not the action was barred by the statute of limitations and not to the issue of whether or not a named beneficiary under a will, who was disappointed by the failure of the gift occasioned by reason of the lack of professional competence of the lawyer who drafted the will, can maintain a malpractice action against the errant lawyer. Accordingly, that substantive issue is not before us, and we intimate no opinion thereon.
In California, a state that has recognized the right of the beneficiary to maintain such an action, it was held that the statute of limitations began to run at the death of the testator.
"Under the alleged facts of this case, we conclude that the limitations period starts from the date that the cause of action accrues; namely the incidence of the testatrix' death when the negligent failure to perfect the requested testamentary scheme becomes irremedial and the impact of the injury occurs." Heyer v. Flaig, (1969) 70 Cal.2d 223, 225, 449 P.2d 161, 162, 74 Cal.Rptr. 225, 226.
Formerly, statutes of limitations were looked upon with disfavor in that they are invariably in derogation of the common law. 51 Am.Jur.2d, Limitation of Actions § 50, (1970). Such statutes rest upon sound public policy and tend to the peace and welfare of society and are deemed wholesome. Horvath v. Davidson, (1970) 148 Ind.App. 203, 264 N.E.2d 328; Sherfey v. City of Brazil, (1938) 213 Ind. 493, 13 N.E.2d 568; High et al. v. Board of Commissioners of Shelby County, (1883) 92 Ind. 580, 589. They are enacted upon the presumption that one having a well-founded claim will not delay enforcing it. In Re Hogan, (1921) 75 Ind.App. 53, 129 N.E. 633.
The trial judge certified and the Court of Appeals found, on Defendants' Petition for Leave to Appeal an Interlocutory Order, that the order denying summary judgment involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case. Accordingly, leave was granted by the Court of Appeals for Plaintiff to appeal from the trial court order, pursuant to Indiana Appellate Rule 4(B)(5)(b). We do not disturb that grant.
The statement of the case, the facts and issues are as stated by Judge Lowdermilk, for the Court of Appeals and are as follows:
As previously stated herein, we have determined that IC 34-4-19-1 is not applicable. Because our decision herein is controlled by our determination of issues 2 and 3 favorable to Defendant's position, further treatment of Issue I is unnecessary.
Again referring to California authority where the right of an intended beneficiary to maintain an action against an attorney who mis-drafted the Will has been established, it has been there determined that the action is in tort. Heyer v. Flaig, supra.
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