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Wetzel v. Hart

MAY 23, 1963.

CLIFFORD WETZEL, PLAINTIFF-APPELLANT,

v.

DR. GEORGE A. HART, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Peoria County; the Hon. J.E. RICHARDS, Judge, presiding. Affirmed.

SPIVEY, J.

Plaintiff appeals from an order of the Circuit Court of Peoria County dismissing his complaint with prejudice and entering judgment for defendant and for costs.

The complaint filed on December 27, 1961, sounds in tort for the alleged negligence on the part of the defendant while performing professional medical services resulting in personal injuries to the plaintiff.

The cause of action accrued on October 19, 1958, in Cherokee, Oklahoma at which time plaintiff and defendant were both residents of the State of Oklahoma.

On September 1, 1960, the defendant and his family moved from the State of Oklahoma and established residence in Chillicothe, Illinois, where they have since resided.

The trial court's dismissal was predicated upon the fact that the cause of action was not commenced within two years next after the cause of action accrued. (Ill Rev Stats 1961, c 83, § 15.)

Plaintiff contends that the cause of action was timely filed by virtue of Chap 83, Sect 21, Ill Rev Stats 1961.

Chap 83, Sect 15, Ill Rev Stat, provides, "Action for damages for injury to the person, . . . shall be commenced within two (2) years next after the cause of action accrued." Section 19, Chap 83 provides, "If when the cause of action accrues against a person, . . . and, if after the cause of action accrues, he departs and resides out of the State, the time of his absence is no part of the time limited for the commencement of the action." Section 21, Chap 83 provides, "When a cause of action has arisen in a State or territory out of this State, or in a foreign county, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time. an action thereon shall not be maintained in this state."

Under the laws of Oklahoma there is a two-year period within which time an action for injury to the person must be commenced. (Okla Stats, Title 12, par 95) and a like statute to Chap 83, Sect 19, Ill Rev Stats, tolling the running of the statute during absence from the State. (Okla Stats, Title 12, par 98).

Plaintiff argues that defendant having removed himself from the State of Oklahoma, the Oklahoma two year limitation provision has not run, it having been tolled by the provisions of Title 12, par 98 of the Oklahoma Statute. He concludes therefore that Chap 83, Sect 21, Ill Rev Stats applies and affords him a cause of action in Illinois in that the limitation statute in Oklahoma has not run.

Plaintiff rightfully concedes that Chap 83, Sect 19 is not available to him in the instant case and he is correct in stating that Chap 83, Sect 21 applies here.

[2-4] Statutes of Limitation are procedural and generally affect only the remedy and not substantive rights (Stanley v. Chastek, 34 Ill. App.2d 220, 180 N.E.2d 512); are governed by the laws of the forum (Klages v. Kohl, 127 Ill. App. 70 and National Bank of Denison v. Danahy, 89 Ill. App. 92); and are available only as defenses [53 CJS Limitations of Actions, Sect 1 (b) (1)].

Such statutes are statutes of repose (Glenn v. McDavid, 316 Ill. App. 130, 44 N.E.2d 84); should be liberally construed so that the object for which they are enacted may be attained (Warren v. Clemenger, 120 Ill. App. 435); and whether the cause of action has accrued within or without the State, the reason for the statute is the same (Davis v. Munie, 235 Ill. 620, 85 N.E. 943).

In construing a like section (Sect 9063 of the Montana limitations statute) to Chap 83, Sect 19, the Supreme Court of Montana in Bahn v. Fritz's ...


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