Woodruff v. Shores, 39427.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtVan Osdol
Citation190 S.W.2d 994
PartiesLOIS WOODRUFF, Appellant, v. E.M. SHORES.
Docket NumberNo. 39427.,39427.
Decision Date03 December 1945

Appeal from Buchanan Circuit Court. Hon. Emmett J. Crouse, Judge.


White, White & White, Irvin, White and Melvin J. Duvall for appellant.

(1) The trial court erred in holding that plaintiff's cause of action was barred by Article 9, Sec. 1016, R.S. 1939, for the reason, that although plaintiff was sane, she was incapacitated from bringing this action by reason of an adjudication of insanity as a result of defendant's acts, until that incapacity was removed by the probate court on August 28, 1944, and she brought this action on November 24, 1944, within two years thereafter. Sec. 1020, R.S. 1939; State v. Vaughn, 122 S.W. 677, 223 Mo. 149; West Lumber Co. v. Henderson, 238 S.W. 710; In re McWilliams, 164 S.W. 221, 254 Mo. 512; Watson v. Priest, 9 Mo. App. 263; City of Carondelet v. Lannan, 26 Mo. 453; Rosenberger v. Mallerson, 92 Mo. App. 27; Kneuven v. Berliner's Estate, 54 S.W. (2d) 494. (2) The petition states a claim upon which relief can be granted. Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Beckham v. Cline, 145 A.L.R. 705, 10 So. (2d) 419; Ayers v. Russell, 3 N.Y. Supp. 338; 48 C.J., p. 1133, sec. 128.

Stringfellow & Garvey for respondent.

(1) The trial court was not in error in sustaining defendant's motion to dismiss upon the ground that the action was barred under Sec. 1016, R.S. 1939, since the action was one charging a physician with malpractice, error or mistake and an action therefor must be brought within two years from the date when the damage was sustained. Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W. (2d) 1029; Thatcher v. DeTar, 351 Mo. 603, 173 S.W. (2d) 760. (2) Appellant does not come within the provisions of Sec. 1020, R.S. 1939, for the reason that the protection of that section is for the insane, while plaintiff's petition alleges that she was at all times sane. Any presumption of insanity is removed by the allegation of sanity. She cannot be permitted to say for the purpose of getting a verdict that she was at all times sane, but that she must nevertheless be presumed to be insane for the purpose of meeting the plea of limitations. Harnett v. Fisher, 16 B.R.C. 238 (1927) A.C. 573. (3) There is no presumption of insanity after discharge from State Hospital. Fox v. Met. Life Ins. Co. of N.Y., 148 Iowa, 476, 263 N.W. 14; Watson v. Bank, 154 Ark. 396, 243 S.W. 844; In re Balch Estate, 156 N.Y.S. 1006. (4) While plaintiff's position is that her petition charges the defendant with malpractice, the petition in reality charges the defendant with giving false testimony in a judicial proceeding, for which he is not liable in a civil action. 48 C.J. 918; Horner v. Schinstock, 80 Kan. 136, 101 Pac. 996; Schaub v. O'Ferrall, 116 Md. 131, 81 Atl. 789, 39 L.R.A. (N.S.) 416; Stevens v. Rowe, 59 N.H. 578, 47 Am. Rep. 231; Godette v. Gaskill, 151 N.C. 52, 65 S.E. 612; Cunningham v. Brown, 18 Vt. 123, 46 Am. Dec. 140.


Plaintiff has appealed from an order sustaining defendant's motion to dismiss plaintiff's petition in an action instituted November 24, 1944, whereby plaintiff sought the recovery of $9000 actual and $100,000 exemplary damages.

Plaintiff alleged in her petition that defendant was at all times mentioned a duly licensed physician and engaged in the practice of his profession in Buchanan County; that on the 17th day of September 1936 plaintiff's husband filed an information in the County Court of Buchanan County alleging plaintiff was insane; that defendant on that date executed a certificate (see Sections 9323 and 9325 R.S. 1939. Mo. R.S.A. secs. 9323 and 9325) stating he had that day seen and examined plaintiff and believed her to be insane and a proper patient to be sent to the state hospital for the insane; that defendant appeared before the county court and verified the certificate which caused the court to commit the plaintiff as an insane person to State Hospital No. 2. St. Joseph, where she was confined until the 17th day of December 1936; that on the latter date the superintendent of the hospital paroled plaintiff to her husband who thereafter constantly threatened her with re-incarceration; that on the 28th day of August 1944 the Probate Court of Buchanan County found and declared plaintiff to be a person of sound mind and duly restored her as such for all purposes; that she was at all times sane, and not a proper patient for commitment as an insane person; that defendant did willfully and intentionally make and execute the certificate, and did under oath falsely and wrongfully represent to the county court that he had seen and examined plaintiff and believed her to be insane. Plaintiff further alleged that the defendant did not see or examine plaintiff on the 17th day of September 1936, nor had he at any prior time treated or examined her for any mental disorder; and that, as a direct result of the acts of defendant, plaintiff was deprived of her liberty and rights as a citizen and has suffered, and will in the future suffer, great pain of body and anguish of mind.

Defendant's motion to dismiss was based upon the ground that plaintiff's petition shows upon its face that her action is barred by limitation under Section 1016 R.S. 1939, Mo. R.S.A. sec. 1016. Counsel for plaintiff are of the opinion the petition states a cause of action against defendant for malpractice, and so informed the trial court. Assuming plaintiff's petition states a cause of action against defendant for a willful or negligent failure to perform a duty as a physician, plaintiff should have instituted her action within two years after the neglect complained of (Section 1016, supra), unless at the time her cause of action accrued she was disabled ("insane") as provided in Section 1020 R.S. 1939, Mo. R.S.A. sec. 1020; if so disabled, she would be at liberty to bring her action within two years after such disability was removed.

Plaintiff (appellant) assigns error in the trial court in sustaining the motion to dismiss, it being plaintiff's position that, until the adjudication by the Probate Court of Buchanan County finding and adjudging her to be sane, she, although sane, was incapacitated from bringing her action by reason of the commitment and confinement brought about by defendant's certificate; and that under the provisions of Section 1020, supra, the period of time as provided by Section 1016, supra, did not commence to run until the adjudication of plaintiff's sanity by the probate court, August 28, 1944.

It must be plainly seen that plaintiff, in order to state a cause of action against defendant, has pleaded (and, in order to recover, would be required to prove by supporting evidentiary fact, inference or presumption) an ultimate fact essential to her recovery, that is, her sanity at the time she was committed as the result of defendant's certificate. It appears upon the face of plaintiff's petition that her action was instituted more than two years after September 17, 1936, when her cause of action accrued, placing upon her the onus of showing that she was under a disability within the purview of Section 1020, supra. The effect of the alleged adjudications of the county court and of the probate court, and the effect of whatever presumptions (conclusive or rebuttable) that should be indulged from the allegations of fact relating to plaintiff's commitment, the parole to her husband and her subsequent restoration as a person of sound mind, which would establish or tend to prove her disability, would, we believe, certainly disprove or tend to disprove plaintiff's allegation of sanity. And the plaintiff's allegation of her sanity at the time her cause of action accrued surely negatives the ultimate fact (that she was insane) which she would have the burden of proving in order that she should be entitled to the delay in filing her action as provided in Section 1020, supra. In the case of Harnett v. Fisher (1927), A.C. 573, 16 B.R.C. 238, a plaintiff, who was in a similar situation to that of plaintiff herein, had been awarded damages in an action against a defendant physician, the jury having found that the defendant had not exercised reasonable care in examining plaintiff, and that plaintiff was of sound mind when he was confined as insane as a result of the defendant's certificate. But the trial court entered...

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