Shideler v. Dwyer

• Decision Date: 20 March 1979
• Docket Number: No. 1-1078A297,1-1078A297
• Citation: 386 N.E.2d 1211
• Parties: Shirley A. SHIDELER and Barnes, Hickam, Pantzer & Boyd, Defendants-Appellants, v. Mary Catherine DWYER, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1211

386 N.E.2d 1211

Shirley A. SHIDELER and Barnes, Hickam, Pantzer & Boyd Defendants-Appellants, v. Mary Catherine DWYER, Plaintiff-Appellee.

No. 1-1078A297.

Court of Appeals of Indiana, First District.

March 20, 1979.

Alvin E. Meyer, Richard L. Gilliom, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, Lineback & Lewis, P. C., Greenfield, for defendants-appellants.

Jon R. Pactor, Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Defendants-appellants Shirley A. Shideler (Shideler) and Barnes, Hickam, Pantzer & Boyd (Barnes, Hickam) bring this appeal after the Hancock Circuit Court denied their motion for summary judgment. They contend that the professional malpractice action brought by plaintiff-appellee Mary Catherine Dwyer (Dwyer) is barred by statutes of limitation set forth in IC 1971, 34-4-19-1 (Burns Code Ed.) and IC 1971, 34-1-2-2 (Burns Code Ed.).

FACTS

Shideler is a partner in the law firm of Barnes, Hickam. In 1973 Shideler prepared a Will for Robert P. Moore. Moore, who executed the Will on October 8, 1973, died on December 14, 1973. Moore's Will, which was admitted to probate on December 21, 1973, included the following provision:

"Clause 7.1(c); Provision for Mary Catherine Dwyer. I specifically direct Dominic L. Angelicchio to use his best efforts Dwyer decided to terminate her employment in the fall of 1974. Her attorney discussed Clause 7.1(c) in Moore's Will with Shideler, who was then serving as attorney for Moore's estate. The estate and Angelicchio ¹ took the position that Dwyer would have to meet the qualifications set forth in the profit-sharing plan of Moorfeed Corporation before she would be eligible for any benefits provided by Clause 7.1(c) of Moore's Will. Nevertheless, Dwyer submitted her resignation effective October 31, 1974.

as long as he owns any shares of stock of Moorfeed Corporation, to cause the Corporation to continue the employment of Mary Catherine Dwyer until her retirement or her other service termination date. In addition, as long as he owns any shares of stock of Moorfeed Corporation until her retirement or other service termination date, then from and after such date and until her death, or the death of Dominic L. Angelicchio prior thereto, Dominic L. Angelicchio shall cause the Corporation to pay Mary Catherine Dwyer as a retirement benefit the sum of $500 per month." (Original emphasis)

When Dwyer did not receive a payment for November 1974, she filed her petition on November 13, 1974, asking the Marion County Probate Court to construe the Will of Robert P. Moore. The Probate Court entered its decree on June 30, 1975, and held that Clause 7.1(c) of Moore's Will was

" . . . null and void and of no effect because of its impossibility of performance. The language in said Clause 7.1(c) is merely precatory language. Such Clause 7.1(c) is directed to a corporation and a stockholder of such corporation cannot cause the corporation to perform the acts set out in said clause."

Dwyer filed her action against Shideler and Barnes, Hickam on June 29, 1977. She alleged, Inter alia, that Robert P. Moore had intended for Dwyer to receive $500 per month in addition to other retirement benefits, and that Shideler and Barnes, Hickam, who prepared the Will for Moore, knew or should have known that Clause 7.1(c) would be held void.

Shideler and Barnes, Hickam ultimately filed their motion for summary judgment, which the trial court denied.

ISSUES

The following issues have been certified to this court for consideration, pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(5):

1. Is Dwyer's action barred by the statute of limitations set forth in IC 34-4-19-1?

2. Is Dwyer's action barred by the statute of limitations set forth in IC 34-1-2-2?

3. Do genuine issues of material fact exist in the case at bar?

Issue One

Shideler and Barnes, Hickam contend that Dwyer's action is barred by IC 34-4-19-1:

"Malpractice Limitation of actions. No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of. . . ."

In Cordial v. Grimm (1976), Ind.App., 346 N.E.2d 266, Judge Hoffman held that the preceding statute is not limited to medical malpractice actions and does apply to malpractice actions brought against members of the legal profession. Judge Staton concurred in the result reached in the case, and Judge Garrard concurred in the result but expressly stated that he did so without reaching the issue of whether IC 34-4-19-1 is applicable to malpractice claims brought against members of the legal profession. ²

The appellant in Cordial v. Grimm, supra, argued that the specific words of the statute "physicians, dentists, surgeons, hospitals, sanitariums" prevented the general words "or others" from encompassing non-medical professionals. In rejecting this argument, Judge Hoffman quoted, at page 271 of 346 N.E.2d, from Kidwell v. State (1967), 249 Ind. 430, 432, 230 N.E.2d 590:

" 'Under the doctrine of Ejusdem Generis, when words of specific or limited signification in a statute are followed by general words of more comprehensive import, the general words are construed to embrace only such things as are of like kind or class with those designated by the specific words, unless a contrary intention is clearly expressed. Short v. State (1954), 234 Ind. 17, 122 N.E.2d 82 and cases cited therein.

'But Ejusdem Generis is not a doctrine of mandatory application. It is merely one method available for determining the legislative intent in connection with a statute. Woods v. State (1957), 236 Ind. 423, 140 N.E.2d 752. The only purpose of Ejusdem Generis is to aid the courts in determining the true meaning of a statute. It should not become a device for unduly narrowing the scope and operation of statutes to an extent never envisioned by the General Assembly. Sherfey v. City of Brazil (1938), 213 Ind. 493, 13 N.E.2d 568.

'Too often it seems the doctrine is employed judicially to exclude cases from the scope of a statute when the language of the statute is clearly applicable to them. In other words the doctrine is often used to obviate legislative intent under the guise of judicial interpretation.'

Similarly, see, Woods v. State (1957), 236 Ind. 423, 427-28, 140 N.E.2d 752, 753-54."

We, of course, agree that the doctrine is misused when it is used to obviate legislative intent. In Kidwell v. State, supra, the appellant was relying upon the doctrine when he argued that a knife was not included within the meaning of "any dangerous or deadly weapon" when the general words were included in the following phrase: "pistol, revolver, rifle, shotgun, machine gun or any other firearm or any dangerous or deadly weapon." Likewise, in Woods v. State (1957), 236 Ind. 423, 140 N.E.2d 752, the appellant relied upon the doctrine in an effort to limit the proscriptions of a criminal statute.

The fact remains, however, that the doctrine is available for a proper use in aiding the courts in determining the true meaning of a statute. In IC 34-4-19-1 the legislature listed physicians, dentists, surgeons, hospitals, and sanitariums; all of these are related to medical care. If the legislature had intended the statute to apply to malpractice cases brought against attorneys, we are confident that either it would have omitted its listing altogether or it would have included attorneys in its listing. ³

We hold that Dwyer's action is not barred by IC 34-4-19-1.

Issues Two and Three

Shideler and Barnes, Hickam contend that Dwyer's action is barred by IC 34-1-2-2:

"The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

First. For injuries . . . to personal property, . . . within two (2) years . . ..

* * *"For

In order to resolve this issue, we must determine when Dwyer's cause of action against Shideler and Barnes, Hickam accrued.

Shideler and Barnes, Hickam provide guidance for making this determination by setting forth certain fundamental rules: "A cause of action accrues, so that limitations begin to run, at the moment its owner has a legal right to sue on it . . .." Fidelity & Casualty Co. v. Jasper Furniture Co. (1917), 186 Ind. 566, 568, 117 N.E. 258. " . . . the accrual of a cause of action . . . depends upon the uniting of at least two elements injury and damages." Montgomery v. Crum (1928), 199 Ind. 660, 678, 161 N.E. 251, 259.

Our Supreme Court provided a helpful explanation of the terms "injury" and "damages" in City of North Vernon v. Voegler (1885), 103 Ind. 314, 318-19, 2 N.E. 821, 824:

"There is a material distinction between damages and injury. Injury is the wrongful act or tort which causes loss or harm to another. Damages are allowed as an indemnity to the person who suffers loss or harm from the injury. The word 'injury' denotes the illegal act, the term 'damages' means the sum recoverable as amends for the wrong. The words are sometimes used as synonymous terms, but they are, in strictness, words of widely different meaning. . . .

In every valid cause of action two elements must be present the injury and the damages. The one is the legal wrong which is to be redressed, the other the scale or measure of the recovery. Mayne Dam. 1; 1 Sutherland Dam. 3. As there may be damages without an injury, so there may be an injury without damages. It has been many times said that no action will lie because the injury produced no damages, or, as the law phrase runs, the wrong is Injuria sine damno.

* * *"ut

Shideler and Barnes, Hickam contend that any injury caused by them must have occurred no later than the date of Moore's death,...