*1 333 Finally, opinion we are of the trial court erred that granting temporary injunction appellee presented since any damages
no evidence as to sustained as con sequence though picketing, of the even some may employees picket have and re crossed line fused to work. granting
We conclude pre- that state since the liminary injunction picketing peaceful has been and with- violence; dispute exists; out appellee a labor as stipulated engaged Thence, in interstate commerce. these being established, facts the United Government has States preempted occupied management- the field of labor relations to the Brand et exclusion of the individual states. al. John Co., App. 469, v. Groub C. Inc. etc. N. E. 157 2d 836. given County
For above, Superior the reasons The Allen Court, jurisdiction 1, question Rm. No. had no act appellee sought present by complaint. which is, County therefore, This cause remanded to the Allen Superior Court, injunc- temporary Rm. No. to dissolve the proceedings tion and for further in accordance with this opinion. Smith, JJ.,
Pfaff and concur.
Cook, P.J.,
participating.
Reported in
William B. Indianapolis, Joseph of Stevenson, of Danville, Locke, Boyd Reynolds, Weisell, Indianapolis, & of Stevenson, Kendall Stevenson, & Danville, counsel, of appellee.
Pfaff, damages J. This brought is an action for by appellant, against Sarah Ann Blank, Carroll appellee, Community Hospital Inc., an Indiana Cor- damages poration, having said appellee’s resulted from the alleged negligence failing properly X-rays to read taken appellant’s informing chest and her of the condition shown by X-rays. said September
On. or about appellant applied position registered a appellee, as a nurse with the a and as precedent employment required condition to her she to was pass physical examination, X-rays. which included chest appellant X-rays After submitted the first set of she was asked X-rays to return for additional be taken of her upon larger chest completion machine. After X-ray-procedure, report ap- received no from the pellee. concerning X-rays. Appellant results said con- appellee tinued registered to work for the aas nurse until on or 7, 1958, about November at which time she terminated employment her appellee. with Thereafter married she was to one Dr. Harold Blank and a child was born of union Upon suffering reoccurring March .1961. periods from weight loss, during exhaustion and a of 1961 summer appellant consulted a doctor for a physical As examination. part X-rays taken were which examination revealed large á cavitory involving large right portion lesion upper lung. Upon learning lesion, appellant’s of said doctors X-rays checked the appellee hospital taken in-October X-rays 1958. These revealed a small infiltrative lesion approximately September 22, the same location. or about On 1961, appellant hospitalized right upper lobectomy was anda *3 performed was Appellant on her on said date. remainéd under physicians the following care of operation up the to and in- cluding April 17, 1963, filing Of the date the of the com- plaint damages for in this action.
On 1966, appellee November filed a sum- for motion mary judgment, supporting 2-2524, affidavit, with under § Burns’ pertinent part' Ind. Stat. Anno. The motion such is as follows: Community “Comes now Hospital the defendant, Inc., pursuant and 2-2524, to Section Burns' Annotated, respectfully Indiana Statutes moves the Court Summary Judgment for against-the plain- in favor and its tiff genuine for the reason there that is no issue as to relating certain material fact either to the defendant’s Limitations, defense of the State or the defense of [sic] remedy the exclusive Compensation of the Workmen’s Act Indiana, moving and thus this defendant is entitled to Judgment in favor support as a matter of law. In motion, moving of its within said defendant attaches part hereof, and Alys
hereto makes the affidavit of moving Kline, Nursing Director of and defendant’s affidavit attached exhibits as identified said thereto.” 30,1966, On November filed her counter-affidavit hearing opposition summary- on to said motion. After judgment motion, court, April 20, 1967, entered the following judgment: being genuine advised, “Court there is no finds that any of the and issue as to defense statute limitations plaintiff by statute, being
that is barred same Burns’ said Annotated, 2-627, pursuant Statutes Section and Indiana thereto now court finds defendant. adjudged is, therefore, plaintiff nothing that the take “It by pay her cause of action herein and that she costs.” May 18,. 1967, appellant trial, On filed a motion for new omitting which, parts formal reads as follows: plaintiff “Comes now above and cause moves following separate court a new trial and several reasons: “(1) That the decision of the court is not sustained by sufficient evidence. “(2) contrary That the decision the court law. “(3) Irregularity proceedings in the court error in order of the court as follows: “ being advised, gen- that there is ‘Court finds no any uine issue as defense statute of plaintiff
limitations is barred statute, being Indiana same Burns’ An- Statutes notated, 2-627, pursuant Section thereto court for the defendant. finds “ adjudged is, therefore, plaintiff ‘It take nothing by her of action herein and that cause *4 pay she costs.’ “WHEREFORE, prays Plaintiff for a new trial and right proper premises.” all relief in other the subsequently appeal motion was overruled Said and this followed.
Briefly stated, the contends that above the stated medical, professional facts do not relationship exhibit a as required by 1, p. Acts ch. 2-627,. § § Burns’ (1967 Ind. Repl.), Anno. they did, Stat. and even if the statute of not does commence to run limitations until the discovery appellant’s August condition in 2-627, supra,
Section provides as follows: — "Malpractice Limitation of No action of actions.— any damages, brought kind for in whether contract or tort, upon professional based services or which rendered rendered, should or brought, have been shall be commenced maintained, any against the courts this state physicians, dentists, surgeons, hospitals, sanitariums, or others, years unless said (2) action is filed within two act, from neglect the date of complained the or omission of.’’ opinion It the of this court that the trial court was cor awarding summary judgment rect in ground the suit beyond period prescribed by was filed statute, barring appellant’s
aforementioned right thus bring this action. A different decision would con statutory language travene the and intent. above,
Based on the statute cited and the reasons stated herein, judgment case is this affirmed.
Cook, P.J., participating; Smith, concurs; J., Bierly, J., opinion. concurs with
CONCURRING OPINION respectfully opin- I J. While concur Bierly, ion, I desire summary to make some observations relative to judgments. Summary Due to recent enactment of the Judgment Act, applica- confusion arisen relative to the has bility losing party. motion for a new trial Kapusta
Recent decisions this court in the cases DePuy Manufacturing Company, App. Inc.
338 Ralph
479, 828, Aldridge 229 N. and E. E. 2d Marianna Raymond Aldridge App. D. and Zirkle H. 233 E. 2d for N. are involved as to a motion a new following judgment. Aldridge case, summary (The trial a Supreme supra, court from Court was returned to this comply 2-6). in order to with the amendment to Rule filing Supreme recognizing of a The Court a clarification following summary a for a motion a new trial judgment, exercizing making April 22, power, rule- on enacted 2-6, following and forth amendment to Rule as follows: set “IN THE SUPREME COURT OF INDIANA.- . “IN RE AMENDMENT TO
RULE 2-6 being duly premises, “The advised in Court now by adding following Rule amends 2-6 .para- thereto graph : “Provided, however, a motion for a new shall trial raising appropriate entering not be of ing for error claimed reason summary judgment. The sustain- summary judgment of a motion for a and the granting arately may assigned specified- sep- of same be assignment errors consid“ration appeal. on further, however, prior “Provided in all cases this, amendment, the effective date where a motion following summary judg-
for a new trial been filed has partios ment, the to said action shall have the same time transcript assignment within which to file a appeal a-motion, errors as in those cases where proper, alleged a new trial is if and the error forth set specified in the motion for a new trial considered appeal. “Approved day April, 22 M. DAVID LEWIS
“/a/
M.
David
Lewis
Justice”
Chief
definitely
2-6
This amendment of
Rule
states
a mo-
following
applicable
summary
tion for
new
trial
judgment.
Reported in
Note. — County Neel v. The Fair Cass Association *6 20,710. Rehearing Filed October 1968. No Petition for [No. filed.]