*1 alleged negligent the defendant omission to include an easement cer- F. Hazel LAUGH LIN, Appellant, abstract of title the land.
tified v. Forgrave, Paul FORGRAVE and John our The defendant has attention called Respondents. Zweigardt Birdseye, 57 to the case of v. No. 52919. “on all fours” Mo.App. 462. That case is instant It not clear from case. Supreme Court of opinion the facts recited in the whether En Banc. abstracter knew that the abstract was Sept. 1968. given plaintiff. However, the court plaintiff buyer re- held that the could not Rehearing Denied 1968. Oct. because he was cover from the abstracter prepare the party to not a the contract “* * abstract, applied and that this rule examiner has
even where abstractor or
knowledge that certificate to title in a used sale or loan to advise
to be
purchaser the trial or loanor.” No doubt making his de-
court relied on this case However,
cision. this case conflicts expressed no herein and should
the views ab- in cases where the
longer be followed abstract
stracter knows that the is to buyer. proposed in a to advise
used sale Ap- pointed the Court of
It was not out to
peals party benefi- that this was third contract,
ciary on such con- although suits permitted time
tracts were
case, great ex- The court relied to Love, in Kahl language
tent on was not in case The Kahl N.J.L.
point. in the Furthermore, in case
Economy Building Association v. & Loan Company, Jersey Title West N.J.L. Supreme Jersey Court
44 A. New money
permitted in reli- one loaned who be free of
ance an abstract certified to from the abstract
encumbrances to recover to include
company its negligent failure This was held to mortgage.
a recorded theory agency under either
authorized party ben- a third
or that ab- prepare the
eficiary of the contract to
stract. the case judgment is reversed
remanded.
All concur. *2 Swofford, City,
Ben Kansas W. Maurice Pope, Morrissey, Joseph, St. Michael F. Denver, Colo., appellant; for & Swofford Waisblum, City, Morrissey Kansas & Mor- Denver, rissey, Colo., of counsel. Joseph Garvey, Joseph, M. St. Clem W. Fairchild, City, Herbert Kohn, M. Kansas respondents; Thomson, Linde, for Van- & Defendants contend Dyke, Langworthy, Kansas Fairchild action, because the barred City, of counsel. 24, 1963, September was not filed June, HENLEY, Judge. neglect date of the act of the action complains. Plaintiff contends damages Action *3 running the two barred, the of because against two doctors. Verdict and 516.100, by since year period was tolled plaintiff $16,000. were for for judgment wrong done resulting the from the damage sustained after-trial The court defendants’ (act discoverable neglect) of was not judgment in accordance with motion for 1962, filed the action was September, and verdict, directed set aside their motion for that date. within two after judgment, judg- and and the verdict entered appeals. defendants. ment for Plaintiff the evi- reporter before The court died We affirm. be tran- could proceedings dence and trial approval parties, The scribed. presented appeal whether The issue on the facts judge, stipulated of the as to trial by is barred the this presented proceedings to had before limitation, in that of 516.140.1 Involved to jury presented the thus the record question: the the statute issue is when does Briefly, appeal. transcript in a on this court begin of in to run per- that defendants this record shows “ * * * begin actions ? Does it to run on plaintiff on Missouri surgery formed at complained neglect, the date the of of Missouri, Hospital Joseph, Methodist in St. ” * * * Or, it run begin of ? to does 4, 1951, on and that she continued “ June ** * damage on the date when the 15, patient their until June resulting wrong the sus- done] [from sal- surgery the consisted a bilateral of capable tained and is ascertainment of pingectomy, appendectomy, Gillian-Grosson or, ”, words, simpler in when lipoma (fatty uterus and excision of a damage injured is discoverable back; that tumor) in her lower defendants party P dam, foreign body, left in a rubber provides post 516.140 that actions sacral area her back. There- Section L5-S1 of others, physicians, surgeons, plaintiff occasionally for mild suffered “ * * * pain back, damages in for and discomfort her lower 17, 1960, 15, 1951, from to October June time, was, the care complained date the act of from time under neglect she to * * (Emphasis *.” Section of four other doctors who administered supplied.) 516.100, her In to than conservative treatment back. applying civil actions other October, 1960, position recovery property, in those for of real she fell a seated “ * * provides pain experienced can in that such actions Colorado and severe back, only pre- resulting in her in marked dis- periods be commenced within lower October, 1960, sections, ability. September, following scribed in the after the From accrued; 1962, pro- pain was for her back causes action shall she treated in have times; vided, purposes sections three other at different doctors thorough although rays taken 516.100to the cause of action shall X were made, none doctors wrong not be deemed accrue when the examinations of these body foreign *, presence done hut re- of this when discovered in September, her she was capable and is back. In sulting sustained therefrom Denver, Colorado, hospitalized by still (Emphasis ascertainment myelogram performed; and a supplied.) another doctor V.A.M.S., except Missouri, Statutes of 1. All references to Revised section n where otherwise indicated.
3H
in the will find
2 and 3.3
filling
it
a small
defect
them footnotes
revealed
presented
in-
September
questions
5 a lumbar
issue
involve
area.
On
L5-S1
during
terpretation
We
laminectomy
performed
516.100and 516.140.
§§
body
history
look
to the
sections
plaintiff’s
left in
those
rubber dam
intent.
any light may
it
on
1951, operation was discovered
shed
June,
September
Prior
and removed.
their
Our statutes of limitations had
surgical
had no
operation
1 Territorial
beginning July
1807. See:
back, except
her
in this area
openings
Laws,
42, p.
en-
Chapter
The first
144.4
surgery performed
defendants
part
actment
what
is now §
4, 1951.
June
appears
Missouri, 1849,
Article
Laws of
II,
cases cited
read the Missouri
Nineteenth General
We have
Assembly
decisions of
reenacted
limitations Article.
and other
parties,
state;
provide
answers Laws
p.
none
77. Section
courts
*4
1,
case.
presented in this
We
Article II of that
reads:
to the
reenactment
questions
juris-
other
cases from
have also read
“Civil
only
actions can
be commenced
by the
cited
and other authorities
dictions
within
periods prescribed
in the sections
parties
question
involved.
in which
follow,
after the
of
causes
action
interesting they are
cases are
While those
shall have accrued.”
gen-
persuasive, because in
particularly
not
language
eral,
using
they involved statutes
The language quoted
remained sub
above
simply (and re-
stantially
from ours.
through subsequent
different
We
the same
rev
reasoning
agree
spectfully) do
Fif
year
isions5
1919. In
in the
interested
adopted
Assembly
1887,
in some. Those
tieth General
amended §
parties
by the
primarily
clause,6
on
1909,
relied
emergency
authorities
RSMo
with an
plaintiff,
490;
see:
F.Supp.
Westport
2.
cases cited
For
206
Brown v.
Louis,
City
Co., D.C.,
F.Supp. 265;
v.
of
363
St.
Gas Co.
Laclede
Finance
145
De
832;
842,
Long
rel.
Campbell
State ex
(1952),
253 S.W.2d
Mo.
St.
v.
Ohio
157
Mo.,
Stilley,
22,
177; Annotation,
337
& Co. v.
Bros.
Stern
104 N.E.2d
A.L.
80
Carpen
City
934;
Malpractice
368;
Louis v.
of St.
R.2d
S.W.2d
Trial of Medical
786,
ter, Mo.,
A.L.R.2d
Cases,
1306,
341 S.W.2d
87
sec.
Williams.
Louisell and
Mo.,
Leonard,
1219;
S.W.
322
v.
Sabine
interesting
4. For a recent
on our
article
Mo.App.
Thompson,
831;
231
Lewis v.
2d
limitations,
statutes of
see: 33 Missouri
Sterling
Krug
938;
321,
v.
S.W.2d
96
171,
Liability
Law
“Tort
Review
and the
Mo.,
143;
Inc.,
Drug,
Urie
416 S.W.2d
(Spring
of Limitation.”
Statutes
by
1968—
1018,
163,
Thompson,
69 S.Ct.
337 U.S.
v.
Davis.)
Frederick
252;
1282,
Fernan
11 A.L.R.2d
L.Ed.
93
277;
Strully,
434,
A.2d
35 N.J.
173
di v.
1865, Chap-
Missouri,
5. General Statutes of
Morgan,
282,
Ayers
154 A.2d
Pa.
v.
397
p. 746;
191,
8,
6773;
1889,
ter
§
RSMo
§
27,
Acton,
788;
Ariz.
198
Morrison v.
68
1899,
4271;
1909,
RSMo
§
1887.
§
RSMo
590;
v.
Center
Health
P.2d
Croswell,
Crossett
548;
874,
Interestingly,
(Sec.
Ark.
256 S.W.2d
emergency
221
6.
clause
58,
Tribble,
2,
S.W.
69;
Ark.
70
v.
189
Burton
Committee
Substitute
S.B.
University
Regents
503;
1919, pp.
v.
211-212)
Costa
2d
Laws of
states:
Cal.App.2d 445,
California,
254
being
judicial
116
some
“There
difference of
Simpson,
85;
opinion
Mo.
321
v.
Telaneus
P.2d
as to the construction of
* *
present
724,
emergency
law,
920.
12 S.W.2d
an
exists
This
statement
reason for the declara-
authority
emergency
curiosity
cited
de
tion
the cases
For
aroused our
DeTar,
fendants,
v.
351
see: Thatcher
and led us down another road. For those
760;
v.
603,
Woodruff
judicial
173 S.W.2d
in
interested
Mo.
“difference of
994,
742,
opinion”
Shores,
existing
166
S.W.2d
354
190
at that time see: Stark
Associates,
957;
Gooding,
Mo.App. 353,
National Credit
Bros.
v.
Co.
A.L.R.
175
954;
Tinker, Mo.App.,
(1914); Boyd Buchanan,
401 S.W.2d
162
v.
S.W. 333
Inc.
v.
Barone,
Mo.App. 56,
Cappuci
Mass.
165
(1914);
266
v.
176
and the effect of actions, upon malpractice amended § cannot har These sections two by adding provide such 1319a § monized, they because irreconcilable “ * brought within shall be conflict; in that the general conflict neg- act date two 516.100, statute, applied complained (Emphasis supplied.) lect of.” actions, would dictate that two revi- beginning result statute to run when does not commence 1319a (RS sion of when 1319 and §§ done, special wong whereas Mo and became were combined statute, says that types had of action RSMo we period run when the commences to section, assault, (libel, one of which one neglect of this con To the extent occurs. it its etc.) did own not have attached special prevails flict over specific the limitation from which date Also, special statute is general. period one (mal- to run and commenced ex regarded later of as an the two stated, this practice) As sec- which did. of, prior ception to, gen qualification or *6 through tion the 1939 the same remained eral one. revision (§ RSMo Again, indicative of significantly, and is clear that the General As- quite It to us malpractice intent to different- treat actions used, sembly deliberately and to continued ly from so the date of other actions far as use, words, the “from the date of the the the commencement of statute running purpose neglect,” expression as an to concerned, Assembly, is the General part applicable build into that of § 1945, repealed by and reenacted specifically malpractice actions § to medical action, type by adding another those em- special a the date provision to from as unpaid ployees payment for the minimum to period pertaining which the limitation etc., wages, provided such that run, independ- those actions commences to be the brought within two to, of, provi- ent the exception and as an accrued, unchanged cause but left intact and sions of 516.100. § provision the actions shall that the date period that the limitation We hold negject. the act of run commenced to
June, 1951; that the two statute that, therefore, 516.100; not tolled § there rule is: “‘Where is one The the action is barred 516.140. § dealing subject statute comprehensive another deal terms and argument that subject in Plaintiff insists in of the ing part with a same the the statute of should way, not com- and definite minute more 1919; (§ 1887), now 510.100. §(cid:127) became RSMo as amended This section III, discovery the mal- menee to run until Article Constitution of V.A. any practice by plaintiff; may question that other result There M.S. be some whether asserted, issues, that we affirm is harsh and should constitutional thus were “ * * * timely raised, the trial judgment properly pass court but we injustice question approach he written into monumental will to and decide these is- plaintiff our law.” It is obvious that did sues their on merits. could have known of
not know and
not
injury
damage
cause
or that
of her
gov
legislative
The
branch of
against defend-
she
a cause of action
had
power
ernment has the
to enact statutes
certainly
September,
ants before
she
power
of limitations and inherent in that
is
her
not
the cause of
could
have discovered
power
to fix
date when
statute
pain
when
she sustained
limitations
commences
run.
to
Statutes
argument
This
seven doctors did not.
will
the law and
not
favorites of
force,
far
appealing and has
so
as
some
process
denying
as
due
held unconstitutional
justice
concerned;
respect the
in that
for commencement
the time allowed
unless
reach
distasteful to us.
conclusion we
the date fixed when
of the action and
But,
govern-
of the
branch
clearly and
to run are
statute commences
policy
ment
determined the
state
has
Moore, 256
Faris v.
plainly unreasonable.
limita-
clearly
the time when the
fixed
ex
[6,
7]; State
S.W.
period begins
against actions for
tion
to run
352 Mo.
178 S.W.
Bigger,
rel. Bier v.
malpractice. This
addressed to
argument
demon
has not
[3], Plaintiff
2d
to
properly
the court
should be addressed
why,
strated,
perceive
reason
and we
no
Assembly.
function
General
Our
time
respect the date and
in what
how or
law;
interpret
disregard
it
is not
We
are unreasonable.
by the
fixed
Assembly.
law as
written
General
date from
it
a reasonable
hold that
fixes
run
the statute commences
solely
plaintiff’s
as
reliance is
Inasmuch
time there
a reasonable
and limits
accords
not
whether
we do
consider
may
malpractice actions
after within which
may
Chapter
affect
other sections
reasons
these
brought;
that for
filing
the time for
of due
plaintiff
deprive
statute does
actions, particularly
516.280.
process
law.
at-
point
briefed
second
statute,
contentions
Plaintiff’s
issues. The
raise constitutional
tempts construed,
equal protec-
deprives her of
theory
adopts the
the court
point is: “If
*7
legislation vio-
the law and is class
tion of
judgment,
its
the trial court and affirms
of
closely
are
lating
rights
constitutional
her
* is unconstitutional
section 516.140
allied.
of
plaintiff
depriving
as
and void
process
due
property rights without
valuable
rule,
As
the date when
a
equal protection
law,
her of
depriving
period begins to run
a limitation
and
legisla-
constituting class
law and as
of the
particular
a
time thereafter within which
the state and
tion,
both
in violation of
all
against
commenced
action shall be
class of
parts
Those
constitutions.”
federal
persons, may be fixed
particular class of
a
plain-
constitutions
federal
state and
legislature
and does not
statute
if the
says
would violate
tiff
equal protection
a denial of
or
amount to
the due
affirmed are
should
judgment
proscribed
pro
legislation,
constitute
class
Amend-
reasonable,
the Fourteenth
clause of
are
process
vided the classifications
apply
affect
discriminatory,
not
to and
the United
and
the Constitution
ment to
I,
persons
alike all
and
within those
Article
and
actions
and 14 of
10
and
States
§§
demonstrated
has not
Plaintiff
(30) of
40
and
classes.
(28)
(6),
subsections
respect
496, 499;
why,
1136, 1143,
this statute
how or in what
S.W.2d
discriminatory, or
is
or
where-
Transport
unreasonable
State ex rel.
Co. v.
Smithco
Commission, Mo.Sup.,
in it
not
and
alike all
apply
does
affect
Public
Service
by any
6, 12-13; City
v.
S.W.2d
of St. Louis Car-
persons
penter,
all
others
against
Mo.Sup.,
and
doctors and
341 S.W.2d
persons designated
within the class of
plaintiff’s contentions. that the conclude General Assem- would The judgment bly is affirmed. case must intended that “from the date filed within two neglect complained (§ of” 516.- act of STORCKMAN, FINCH, EAGER when, when, damage re- but only JJ., concur. capable sulting therefrom is sustained and is 516.100), the date (§ ascertainment If, case, neglect. as in this DONNELLY, J., separate dissents in dis- damage capable not of ascertainment on is senting opinion filed. neglect, the act of the mal- date of practice be filed within two case must resulting damage from the date the there- HOLMAN, SEILER, J., J.,C. dis- capable of ascer- and is is sustained separate dissenting opin- sent and concur in tainment. DONNELLY, ion of J. course, apply must a statute Of this Court meaning clear. Fore- as written when its DISSENTING OPINION Dairies, Thomason, supra. most Inc. v. when, here, However, is un- a statute DONNELLY, Judge. judicially duty clear it our becomes can, intent, legislative we ascertain Inc., Dairies, Thomason, v. Foremost must, Assembly in- assume the General 651, 659, Mo.Sup., this Court 384 S.W.2d “ Company just * * tended a Laclede result. Gas meaning stated: Where the Louis, City of St. 363 Mo. a statute is clear there no occasion Casualty 832, 835; Maryland Com- S.W.2d apply courts it construction will pany Mo.Sup., Company, Electric v. General However, meaning as written. when the S.W.2d duty doubtful it of the becomes elementary courts construe it. It principal opinion, As stated it “is applied the primary rule in the con- obvious that did know and struction is to ascertain and ” could not have known of the cause her give effect to the intent. injury had cause or she Sep- before defendants I believe that 516.140and 516.100are §§ tember, certainly she could not have “pari materia,” and that we should *8 pain discovered cause of her statutory apply a rule construction upon supposition “proceeds she sustained when seven doctors governed one these were [that did not.” I statutes] would hold that is en- spirit policy to be and were intended day titled to her in court these under cir- several consistent and harmonious in their cumstances. ex parts provisions State Mitchell, I Bridge respectfully rel. Cairo Commission v. dissent.