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Burd v. McCullough

November 29, 1954

MITTIE BURD, AN INFANT, WHO SUES BY HER FATHER AND NEXT FRIEND, HARRY BURD, PLAINTIFF-APPELLANT,
v.
DR. JAMES Y. MCCULLOUGH, DEFENDANT-APPELLEE.



Author: Swaim

Before MAJOR, LINDLEY and SWAIM, Circuit. Judges.

SWAIM, Circuit Judge.

The appellant, Mittie Burd, a minor, sued the appellee, Dr. James Y. McCullough, for malpractice. The District Court sustained appellee's motion for summary judgment on the ground that the action was begun after the applicable two year statute of limitations. This appeal is taken from that judgment.

The dispute revolves about two separate Indiana statutes. One was enacted in 1941 and established a special limitation on malpractices 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 years from the date of the act, omission or neglect complained of." Indiana Acts 1941, Ch. 116, p. 328, Sec. 2-627, Burns' Repl. 1946.

The other statute was enacted in 1881 and saved the rights of minors:

"Any person being under legal disabilities when the cause of action accrues may bring his action within two years after the disability is removed." Indiana Acts 1881, Ch. 38, p. 247, Sec. 42, Sec. 2-605, Burns' Repl. 1946.

Section 2-4701, Burns' Repl. 1946, which is part of the same 1881 Act, defines the phrase "under legal disabilities" as including persons less than twenty-one years of age.

The appellee claims that the 1941 statute of limitations excludes application of the 1881 Act when it says that "no action of any kind" shall be brought for malpractice after two years. The appellant argues that the 1881 Act is an exception to all statutes of limitation which do not specifically provide to the contrary, the question has not been decided by the Indiana Courts, and we are called upon to determine what they would decide if the question were presented to them.

Of course, we must be guided by the intent of the legislature, if it can be determined. We find that Indiana has evidenced a desire to save the rights of those under disability and also a desire to limit malpractice actions to two years after the alleged wrong is inflicted. Which was intended to control on those occasions in which the two coincide? The fact that the legislature in all probability did not consider this question does not make our task easier. But fotunately we do not have to impose upon Indiana our own choice between these two legislative purposes, for over the years the state courts have developed rules of construction to guide courts in determining legislative intent.

There are several Indiana decisions that, although not on all fours with the case at bar, are closely analogous to it.

We may quickly dispose of the first two cases cited by the appellee, De Moss v. Newton, 1869, 31 Ind. 219, and Waugh v. Riley, 1879, 68 Ind. 482, because they were decided before the 1881 Act and held only that, in the absence of legislation preserving them, the rights of minors are cut off by a statute of limitations.

These cases were followed, however, by a case in the Indiana Appellate Court that was decided after the 1881 Act. Elliott v. Brazil Block Coal Co., 1900, 25 Ind.App. 592, 58 N.E. 736. This case involved the right to redeem land sold for taxes. The court held that a statute of limitations applied to minors as well as anyone else but it did not mention the 1881 Act. Thirteen years later that court held that the 1881 Act preserved a minor's right to bring action in the face of a special statute of limitations which had run, and cited the Elliott decision. Macy v. Lindley, 1912, 54 Ind.App. 157, 164, 99 N.E. 790, 792.

The Macy case is distinguishable from the one at bar, however. The decision there was based primarily on a special statute providing that infants and others under disabilities might redeem land sold for taxes within two years after removal of their disability. Indiana Acts 1891, Ch. 99, page 272, Sec. 193. Reference was made to the 1881 Act only because, procedurally, the plaintiff in that case chose to exercise her right to redeem her land by means of a motion to open judgment under an Indiana statute which placed a two year limit on the filing of such motions.The 1891 Act, applying only to redemption, was employed to allow her to redeem her land, and the 1881 Act was used to justify the procedural means used. In our opinion the 1891 Act served both purposes, and there was no need to rely on the general saving Act of 1881. Certainly the 1891 ...


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