Wilkinson v. Bennett Const. Co.

• Decision Date: 07 April 1969
• Docket Number: No. 25108,25108
• Citation: 442 S.W.2d 166
• Parties: Marshall W. WILKINSON, Plaintiff, and Mary Wilkinson, Plaintiff-Appellant, v. BENNETT CONSTRUCTION COMPANY, Inc., a Corporation, and the Scottish Rite Temple, Inc., a Corporation, Respondents.
• Court: Missouri Court of Appeals

Page 166

442 S.W.2d 166

Marshall W. WILKINSON, Plaintiff, and Mary Wilkinson, Plaintiff-Appellant, v. BENNETT CONSTRUCTION COMPANY, Inc., a Corporation, and the

Scottish Rite Temple, Inc., a Corporation, Respondents.

No. 25108.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Motion for Rehearing and/or Transfer to the Supreme Court

Denied June 2, 1969.

Dubiner & Gregg, Kansas City, John C. Milholland, Harrisonville, for Mary Wilkinson.

Samuel J. Molby, Thomas E. Allen, Kansas City, for Bennett Const. Co., Inc.

Watson, Ess, Marshall & Enggas, Wm. H. Sanders, Dean F. Arnold, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for Scottish Rite Temple, Inc.

JAMES W. BROADDUS, Special Commissioner.

Appellant, Mary Wilkinson, alleged in her petition that her husband was negligently injured by respondents Bennett Construction Company, Inc., and The Scottish Rite Temple, Inc., on February 20, 1958, and as a result she had been deprived of his care, comfort, services and consortium, all to her damage in the sum of $10,000. Appellant's husband, Marshall W. Wilkinson, commenced an action for damages for personal injuries against respondents within the applicable five-year period of limitations. Thereafter, his action, which is still pending in the trial court, was non-suited without prejudice and refiled within one year thereafter, on December 11, 1967. On February 2, 1968, ten years after the alleged negligent conduct, appellant commenced this action for loss of her husband's services. Upon motions of respondents the trial court imposed the bar of limitations and dismissed appellant's action.

Appellant's contention is that: 'The trial court erred in sustaining Respondent's motion allegations that appellant's claim for loss of her husband's services as a result of tortious injury to him on February 20, 1958, was barred by the five-year statute of limitations at the time appellant filed suit on February 2, 1968, and in dismissing appellant's claim, because from the date of her husband's injury causing damage to appellant, the courts of Missouri were closed to the assertion and prosecution of appellant's claim by court fiat and process of law until said disability was removed on March 11, 1963; appellant filed her claim within five years after the removal of the disability, and is not barred by limitations.'

Appellant first quotes from Sect. 1.010 V.A.M.S. which states that the common law of England and all statutes and acts of Parliament made prior to the fourth year of the reign of James the First, of a general nature, which are not local to that Kingdom and not repugnant to or inconsistent with the Constitution of the United States, the Constitution of this state, or the statute laws in force for the time being, are the rule of action and decision in this state.

Her brief then states that: 'Limitations were recognized at common law and exceptions to limitations were also recognized. Missouri has its general statutes of limitation, including Sect. 516.120, V.A.M.S., designating five years as the period of limitations prescribed for actions of the nature of that asserted by appellant, and Sections 516.170, 516.200, 516.210, 516.230, 516.260 and 516.280, V.A.M.S., which set out affirmative exceptions to the running of limitations.

'It is the contention of this appellant that nothing in the statutes is repugnant to or supercedes the exceptions which are a part of the common law and appellant relies on the tolling of the statute of limitations effected when the law, by no fault of the claimant imposed on her a period of disability to prosecute her lawful claim.

'On March 11, 1963, the case of Novak v. Kansas City Transit, Inc., Mo.Sup., 365 S.W.2d 539, overruled prior decisions, including the prior controlling decision of Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, which had held that a married woman could not recover for tortious invasion of her right of enjoyment of her husband's services arising from personal injury of her husband.

'According to this case, the right of action accrued to this appellant on February 20, 1958, when her husband was injured, to her damage as well as his. She had the right of action, but through no fault of hers, until March 11, 1963, she lacked the ability to prosecute it. The law of the state had denied her access to the courts. Under the applicable common law, the closure of the courts to her tolled the period of limitations.'

Appellant thus conceding that she is unable to bring her case within any statutory disability or exception to the statute of limitations relies upon a theory purportedly from the common law, which she has designated 'a judicially imposed disability.' According to appellant's argument, the Supreme Court opinion in Bernhardt v Perry, misstated the law in this jurisdiction and 'closed the courts' to a wife's action for loss of her husband's services; this error was corrected in Novak v. Kansas City Transit, Inc., and thereby 'opened' the courts and authorized prosecution of appellant's action. Appellant then theorizes that the statute of limitations was suspended during the period that the courts were 'closed' to her action and cites one decision, Hanger v. Abbott, 6 Wall. 532, 73 U.S. 532, 18 L.Ed. 939 (1867), in support of that theory. Plaintiff Abbott was a New Hampshire resident; defendant Hanger was an Arkansas resident who raised the bar of limitations to plaintiff's action in assumpsit. Plaintiff replied that his country (the Union) was at war with defendant's country (the Confederacy) and he was precluded by federal law from prosecuting his action during the hostilities. The United States Supreme Court ruled that the statute of limitations was suspended in actions between parties of separate nations during a duly declared state of war.

Appellant would borrw this theory to avoid the bar of limitations. Appellant's argument is unusual, but not original; it was first rejected by the Missouri Supreme Court over 100 years ago. In Richardson v. Harrison, 36 Mo. 96 (1895), plaintiff filed suit after the applicable three-year period of limitations had expired and defendant pleaded the bar of limitations. The court determined that:

'The only question in this case is whether this demand was barred by the statute.' (l.c. 99)

That plaintiff, like the present appellant, contended that the statute of limitations was suspended during the period the courts were closed. The court said:

'* * * the only excuse attempted to be set up for this is, that the civil law was suspended in Laclede county for a period of eight months--from August, 1861, to April, 1862--on account of the Civil war. The general rule is, that when the statute begins to run it will continue to run; and a party wishing to make an exception to the rule must show affirmatively such facts as will take his case out of the rule.

'Here it is said that the civil law was suspended, and it is contended that the time it was suspended ought to be deducted from the time it had to run. * * * It has been held (citation omitted) that though the courts of justice should be closed so that no original writ could be filed, yet the statute would bar the action; because the statute is general and must work upon all cases which are not exempted by the exceptions, and plaintiff here has not shown himself to be among those exempted in the statute.' (l.c. 101)

Eight years later another plaintiff unsuccessfully attempted to avoid the bar of limitations by offering evidence that the courts were closed for six months during the Civil war. The Missouri Supreme Court rejected the argument that under Hanger v. Abbott, supra, the statute of limitations was suspended. The Supreme Court held that the trial court properly excluded plaintiff's evidence and reaffirmed Richardson v. Harrison, supra. See McKinzie v. Hill, 51 Mo. 303, 306 (1873) as follows:

'Richardson v. Harrison was a case similar to this, and we there held that proof that the civil law was suspended on account of the war, during a portion of the period, would not extend the time for presenting the claim.'

Appellant's cause of action accrued on February 20, 1958, at the time her husband allegedly sustained injury and, unless suspended, the statute of limitations began to run on that date and barred appellant's remedy after February 20, 1963. The statute of limitations may be suspended or tolled only by specific disabilities or exceptions enacted by the Legislature and the courts are not empowered to extend those exceptions. As stated in Hoester v. Sammelmann, 101 Mo. 619, 14 S.W. 728:

'The authorities cited by counsel for defendants show that under repeated rulings of this court, the same statute which bars actions at law bars also proceedings in equity, saving those which the statute expressly excepts, and courts cannot extend those exceptions so as to embrace cases not within the specific exceptions enumerated in the statute itself.' (Emphasis added)

Additional case in which the Missouri courts have consistently required strict compliance with the specific statutory exceptions to limitations are Emanuel...