Slaughter v. Tyler

• Decision Date: 14 December 1936
• Citation: 126 Fla. 515,171 So. 320
• Parties: SLAUGHTER v. TYLER.
• Court: Florida Supreme Court

171 So. 320

126 Fla. 515

SLAUGHTER v. TYLER.

Florida Supreme Court, Division B.

December 14, 1936

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by Anna Lee Slaughter, a minor, by M. S. Slaughter, as her next friend, against L. V. Tyler. To review a judgment in favor of defendant, plaintiff brings error.

Affirmed.

COUNSEL Evan Evans, of Jacksonville, for plaintiff in error.

Harry T. Gray and Marks, Marks, Holt, Gray & Yates, all of Jacksonville, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment in favor of defendant upon replication admitting to be true pleas numbered 5 and 6, as follows:

'5. That the alleged cause of action did not accrue within three years before this suit.

'6. That the alleged cause of action did not accrue within four years before this suit';

which pleas were interposed to an amended declaration which was filed September 16, 1935, pursuant to the institution of the suit on the 19th day of February, 1935, and in which declaration it was alleged in effect that the defendant Tyler, on the 1st day of January, 1929, was a physician and surgeon practicing and holding himself out as such to the public in Jacksonville, Duval county, Fla., and that plaintiff suffered a laceration of her right arm, which laceration cut and severed certain tendons and muscles at a point above the elbow, and that at that time and place the defendant was employed to render to the plaintiff such medical and surgical attention as might be necessary for said laceration, and that defendant then and there undertook and entered upon such employment.

It is then alleged in effect that it became the duty of the defendant to perform the services of a surgeon in a proper careful, and skillful manner, but that the defendant failed to properly perform that duty, and carelessly and negligently failed to sew together the tendons and muscles but sewed up the flesh of plaintiff's arm without having performed the further duty of sewing together the tendons and muscles.

The declaration then alleges that plaintiff was damaged by the careless and negligent performance of the operation by the defendant.

The declaration alleges that Anna Lee Slaughter, the plaintiff, is a minor.

So the question presented here is whether or not the statute of limitations with respect to personal injury actions runs against a minor.

In Palmer v. Jackson, 62 Fla. 249, 57 So. 240, this court held that an action against a physician for malpractice is barred by the statute of limitation prescribed in paragraph 5 of section 2939, R.G.S., section 4663, par. 5, C.G.L., which is as follows:

'5. Within Three Years.--1. An action upon a liability created by statute, other than a penalty of forfeiture; 2, an action for trespass upon real property; 3, an action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property; 4, an action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; and, 5, an action upon a contract, obligation or liability not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts.'

In Gillespie v. Florida Mortgage & Investment Co., 96 Fla. 35, 117 So. 708, 709, we held:

'In the absence of a saving clause, a statute of limitations runs against all persons, whether under disability or not. 37 C.J. 985. When a statute of limitations begins to run, no subsequent disability will prevent it from running. See Bennett v. Herring, 1 Fla. 387; Wade v. Doyle, 17 Fla. 522; Doyle v. Wade, 23 Fla. 90, 1 So. 516, 11 Am.St.Rep. 334. Where a cause of action arises during the life of an ancestor, resting under a disability, such disability ceases and the statute begins to run upon the death of such ancestor; and the statute is not suspended by any statutory disability of the heir at the time of the descent cast. 37 C.J. 1031; Davis v. Coblens, 174 U.S. 719, 19 S.Ct. 832, 43 L.Ed. 1147; Doyle v. Wade, 23 Fla. 90, 1 So. 516, 11 Am.St.Rep. 334.'

The text of Corpus Juris referred to in the above citation is found in section 370 of the page and volume mentioned and reads as follows:

'Disabilities.--1. In General. The saving of the operation of limitations by reason of disabilities depends on the statute as it existed at the time the cause of action accrued; in the absence of such a saving clause, the statute runs against all persons, whether under disability or not; and when exceptions in favor of persons under disability are made they should be strictly construed and never extended beyond their plain import or to disabilities not enumerated in the saving clause, although the repeal of such statutory exceptions by a later act containing no exceptions should not be declared if there is no necessary conflict between the provisions. Mere doubt as to a right, or difficulty in the way of its assertion, will not operate as an exception. Apart from the disabilities expressed in the statute itself, in order to prevent the operation of limitations there must be some insuperable barrier, or some certain and well defined exception clearly established by judicial authority.'

In 37 C.J. 1018, it is said:

'The exemptions from the operation of statutes of limitations commonly granted to infants do not rest upon any fundamental doctrine of the law, but upon the legislative will expressed in the statutes; infants could be put upon the same footing as adults in this respect, and unless excepted they so stand. Where a suit is a purely derivative one, infancy of plaintiff does not except him from the bar of the statute of limitations. In many jurisdictions, by express statutory enactment, or by judicial construction, where the statutes excepts persons laboring under disabilities from its operation, without mentioning infants specifically, infants are within the saving clause of the statute, if it is purely a statute of limitation, affecting the remedy and not the right, and the statute does not run against them during such disability, even where such infant has a guardian who might maintain the action in his or her name, provided the title or right of action is in the infant.'

And so it is that we must look to the statute to determine whether or not the statute of limitations applying to personal actions for damage such as is here involved runs against a minor suffering such damage in the manner alleged in this declaration.

In the Act of November 10, 1928, it was provided:

'All actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought shall be commenced and sued within the time and limitation hereafter expressed, and not after, that is to say, the said...