MOSES CORDIAL v. EDGAR A. GRIMM AND HOWARD S. GRIMM
No. 3-974A161
Court of Appeals of Indiana
Filed April 28, 1976
345 N.E.2d 865
In the case at bar, we are not left to consider whether the change order dated November 19, 1973, represented a contract supplement to the original contract of July 30, 1973. So much as bespeaks the incidental character of the later agreement is not an area of contention. Therefore, on the basis of the foregoing authorities it must be concluded that the statutory provisions hereinabove noted are not applicable in the case of the agreement in question.
No reversible error having been demonstrated, the judgment of the trial court must be affirmed.
Affirmed.
Staton, P.J. and Garrard, J., concur.
NOTE.—Reported 345 N.E.2d 865.
Carl J. Suedhoff, Jr., Hunt, Suedhoff, Borror, Eilbacher & Lee, of Fort Wayne, for appellee.
HOFFMAN, J.—Plaintiff-appellant Moses Cordial brought this action to recover damages allegedly resulting from the legal malpractice of defendants-appellees Edgar A. Grimm
The sole issue presented by this appeal is whether the trial court erred in granting such summary judgment. In passing upon this question, it must be determined whether the trial court was correct in holding that there was no genuine issue as to any material fact.
The facts and inferences therefrom most favorable to appellant Cordial in the record of this cause establish that the appellant engaged attorney Edgar Grimm to represent him in a workmen‘s compensation action in December of 1966. Such action was terminated adversely to appellant in November of 1967. In March of 1968 attorney Howard Grimm initiated a second claim for workmen‘s compensation on appellant‘s behalf based upon the same injury. Such second claim was denied by a single hearing member of the Board in February of 1969 on the ground that it was barred by the prior claim and determination. The full Industrial Board sustained such finding in March of 1971.
Appellant then contacted numerous attorneys, presumably in reference to the alleged malpractice of the appellees, but did not retain an attorney to prosecute an action against the appellees. Ultimately, he commenced this action pro se on March 24, 1972.
The trial court did not specify what statute of limitations it relied upon in granting summary judgment for the appellees. The appellant asserts that no statute of limitations barred his claim, while the appellees assert that two statutes of limitation are applicable to this case and that the appellant‘s claim is barred by both such statutes.
The first statute of limitations whose applicability is questioned by the parties is
“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: * * *”
In ruling upon the applicability of this statute, we must initially approach the question of the nature of appellant‘s cause of action. Although he concedes that his action has many of the characteristics of a tort claim, appellant has attempted to characterize his cause of action as a breach of an implied contract of employment, and to thereby render applicable the longer statute of limitations1 pertaining to contracts not in writing. In making this assertion appellant has, apparently unwittingly, stumbled across a question which provoked much litigation in relation to medical malpractice actions in the years before the adoption of the present Indiana statute of limitations applicable to such actions. Stated classically, the question is: Where a tort arises out of a contract, is
The Indiana cases which directly deal with this question were decided in the area of Field Code pleading. See, e.g., Staley v. Jameson (1874), 46 Ind. 159; Boor, Administrator, et al. v. Lowery (1885), 103 Ind. 468, 3 N.E. 151. At this time, each pleading paragraph of a complaint was required to contain sufficient averments of fact within itself to reveal the theoretical nature of the cause of action to the court. Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 351, 41 N.E.2d 947; State v. Adams Express Co. (1909), 172 Ind. 10, 87 N.E. 712; Chicago & Erie R. Co. v. Monesmith (1941), 110 Ind. App. 281, 37 N.E.2d 724. In those cases, our courts determined the question of the nature of an action such as the case at bar by reference to the theory stated in the complaint. See, e.g., Lane v. Boicourt (1891), 128 Ind. 420, 27 N.E. 1111.
However, under our present Indiana Rules of Procedure, a party commencing a civil action is required to include in his complaint only a short and plain statement of his claim, and a demand for relief.
In conformity with these principles, appellant alleged in his original and amended complaints the facts constituting the alleged malpractice by the appellees, and omitted any reference to his legal theory of the action. In ruling on appellees’ motion for summary judgment, however, the trial court was required to determine what statute of limitations was
It is proper for a trial court to make such a determination in order to determine what law is applicable to a particular case. Sickels v. Aetna Securities Co., supra. As stated by Judge Dillin in the case of Koehring Company v. National Automatic Tool Co. (1966), 257 F. Supp. 282:
“The general rule is that, especially where forms of action have been abolished, as in Indiana, it is the nature or substance of the cause of action, rather than the form of the action, which determines the applicability of the statute of limitations. 53 C.J.S. Limitations of Actions § 33 p. 982.”
Similarly, see, 51 Am. Jur. 2d, Limitation of Actions § 105, 677-78.
It will be noted that the American Jurisprudence section cited above states that some older caselaw authority exists in Indiana which is contrary to such general rule. However, as recounted hereinabove, such caselaw arose under a substantially different system of civil procedure and was premised upon the legal theories of such system. Today a dominant trend in the law, as exemplified by our present Indiana Rules of Procedure, is the recognition of substance and the disregard of mere form. The general rule quoted hereinabove serves this end. Furthermore, the older Indiana caselaw authorities now under consideration are of dubious vitality, due to the language of subsequent decisions. See, Anno. 1 A.L.R. 1313, at 1316-18, supra; and Anno. 80 A.L.R. 2d 320, § 6(b), at 342-43.
Thus, it is both necessary and appropriate under the current state of the law for the trial court to rule upon the legal nature or substance of a cause of action when the applicability of a statute of limitations to such cause of action is in issue. See, 51 Am.Jur. 2d, Limitation of Actions, § 62, at 640-41.
In the case at bar, the substance of the factual allegations
Such claim was a chose in action, and as such must be considered to have been the personal property of appellant. See, Gregory v. Colvin (1963), 363 S.W. 2d 539, 540, 235 Ark. 1007; Peavy Lumber Company v. Murchison (1961), 130 So. 2d 338, 340, 272 Ala. 251. Cf: Merritt v. Economy Dept. Store, Inc. (1955), 125 Ind. App. 560, 128 N.E.2d 279. It is the alleged tortious damage to such personal property which gave rise to appellant‘s cause of action, and it is for such damage that he sought compensation.
In light of the foregoing, the trial court could have properly concluded that the provision of
The second statute of limitations, the applicability of which is questioned by the parties, is
“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.”
Although this statute has historically been applied only to medical malpractice actions, it would be improper to summarily dispose of this issue. The contentions of the parties as to this statute must be given a careful consideration on their merits, because the question which they pose concerns an arguable ambiguity in the wording of this statute which would affect its application.
And, in construing a statute, a court must endeavor to do so within the context of logic and reason. Pickens v. Pickens (1970), 255 Ind. 119, 128, 263 N.E.2d 151. It is also the rule that statutes of limitation are statutes of repose which are founded upon considerations of justice and sound public policy, and are, therefore, favored by the courts. Horvath v. Davidson (1970), 148 Ind. App. 203, 264 N.E.2d 328; Marshall, Auditor v. Watkins (1939), 106 Ind.App. 235, 18 N.E. 2d 954.
Further, statutes of doubtful meaning should be considered in their entirety, including their title, to determine legislative intent; State ex rel. 1625 E. Wash. R.Co. v. Markey, Judge (1937), 212 Ind. 59, 7 N.E.2d 989; Board Comrs. v. Bd. Sch. Comrs. of Indpls. (1960), 130 Ind. App. 506, 166 N.E.2d 880, and such statutory titles should be liberally construed in so determining legislative intent. State ex rel. Booth v. Beck Jewelry Enterprises (1942), 220 Ind. 276, 41 N.E.2d 622, 141 A.L.R. 876.
Appellant asserts that the trial court erred if it applied
The proper legal basis for this contention of the appellant is the doctrine of ejusdem generis. The tenets of this doctrine have been articulately expressed by our Supreme Court in Kidwell v. State (1967), 249 Ind. 430, at 432, 230 N.E.2d 590, at 591-92 (Cert. denied, 392 U.S. 943, 88 S.Ct. 2326, 20 L.Ed. 2d 1405), as follows:
“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.
An examination of
The text of
Nor can it be contended that malpractice actions against attorneys were a phenomenon of which the Legislature was unaware when it enacted
In light of these considerations, it must be concluded that the Legislature did not intend to limit the application of
As to what actions are predicated upon “malpractice” so as to fall within the ambit of
The trial court did not err in holding that a two-year statute of limitations was applicable to the appellant‘s cause of action.
The next issue which must be considered herein is whether the running of the foregoing statutes of limitation was tolled by a fraudulent concealment of appellant‘s claim by the appellees. Appellant‘s assertion in this regard is made by analogy to the rule stated in Guy v. Schuldt et al. (1956), 236 Ind. 101, 138 N.E.2d 891. The holding of Guy v. Schuldt, et al., supra, in this regard was recently summarized by this court in Toth v. Lenk (1975), 164 Ind.App. 618, at 622, 330 N.E.2d 336, at 339, in this manner:
“In Guy v. Schuldt, supra, our Supreme Court held that fraud would estop a physician from relying on the statute of limitations and that accordingly the statute could not be set up by demurrer since to do so would preclude the plaintiff‘s ability to assert fraud in a reply.
“The Guy court surmised that due to the nature of the physician-patient relationship, the running of the statute might be prevented. The Court reaffirmed the general principles of an estoppel for fraud, which require both intentional conduct by the defendant, and that the plaintiff, relying upon the defense, not only be unaware of the fraud, but also have been unable to discover it in the exercise of diligence. The duty of the physician to disclose that which he knows, or in the exercise of reasonable care should have known, satisfies the requirement of conduct and constitutes a constructive fraud.
“Under this analysis the constructive fraud would terminate with the termination of the physician-patient relationship and the statute would commence to run. Guy, supra; Ostojic v. Brueckmann (C.A. 7th 1968), 405 F. 2d 302.” (Footnote omitted.)
A review of the record of this cause reveals that the statements of fact and the inferences therefrom most favor-
However, the appellant infers that a constructive fraudulent concealment of his cause of action occurred after the termination of his professional relationships with appellees “owing to the concatenation of events * * *.” It must be surmised that appellant would consider the continuing pendency before the Board of the appeal of the second claim as an implied representation by appellees that such appeal was a proper procedure. However, as previously stated, all of the facts which were before the trial court indicate that the professional relationships between the appellant and the appellees terminated no later than June of 1969, long before such appeal was decided in March of 1971. In the case at bar, once such relationship terminated, any constructive concealment also terminated. Appellant has not asserted any claim of fraudulent concealment which would toll the running of the statutes of limitation discussed hereinabove. Guy v. Schuldt, et al., supra; Toth v. Lenk, supra; Brown v. Gardner (1974), 159 Ind. App. 586, 308 N.E.2d 424.
Appellant next contends that the statutes of limitation considered hereinabove should commence to run only upon the actual discovery of a right of action by the injured party. However, such is not the law in Indiana. Toth v. Lenk, supra (1975), 164 Ind. App. 618, 330 N.E.2d 336; Merritt v. Economy Dept. Store, Inc., supra (1955), 125 Ind. App. 560, 128 N.E.2d 279.
The final contention made by appellant is that his causes of action did not accrue until he suffered both an injury to
Even assuming, without deciding, that the general rule stated above is applicable to appellant‘s cause,2 the damage to such property right occurred when his first attempt to recover thereon was terminated adversely to him with prejudice to his ability to maintain any further proceedings thereon. Although he asserts that a “possibility of success” existed until the second action was terminated, the allegations of appellant‘s original complaint establish that such second action was barred by reason of his first claim. Thus, appellant suffered the damage which is the basis of this case in November of 1967 and the trial court correctly concluded that appellant‘s cause of action accrued more than two years prior to the commencement of this case.
The appellant has shown no reversible error in the trial court‘s ruling on the motion for summary judgment; and the judgment of the trial court must be affirmed.
Affirmed.
Staton, P.J., concurs in result; Garrard, J., concurs with opinion.
CONCURRING OPINION
GARRARD, J.—I agree that plaintiff‘s action was subject to the two year statute of limitations provided by