453 F2d 1253 Johnson v. Grim-Smith Hospital
453 F.2d 1253
Vernon JOHNSON, Appellant,
GRIM-SMITH HOSPITAL et al., Appellees.
United States Court of Appeals,
Jan. 25, 1972.
James B. Morris, Jr., Morris & Morris, Des Moines, Iowa, for appellant.
William Y. Frick, Frick & Mayberry, Kirksville, Mo., for appellees, Grim-Smith Hospital and Robert William Buben.
Before VAN OOSTERHOUT and STEPHENSON, Circuit Judges, and REGISTER, District Judge.
Plaintiff takes this timely appeal from final judgment dismissing his malpractice action on motion for summary judgment on the ground that the action is barred by the two-year statute of limitations governing malpractice actions. (Sec. 516.140 RSMo1959, V.A.M.S.).
The facts and basis of decision are fairly set forth in Judge Wangelin's opinion reported at 326 F.Supp. 537.
Plaintiff upon appeal strongly urges that summary judgment was improper because disputed fact issues exist. Summary judgment of course is inappropriate where a dispute exists as to a material fact. The record consists of the pleadings, affidavits, interrogatories, answers thereto and depositions. While some factual disputes exist, the trial court assumed for the purpose of his ruling that representations were made as stated by the plaintiff. The court then determined that, under the controlling Missouri law set forth in its opinion, the record when viewed in the light most favorable to the plaintiff afforded no basis for tolling the statute of limitations. The trial court's decision is not based upon the resolution of material factual issues.
We agree with the view of the trial court that no dispute exists as to material facts. The facts as urged by the plaintiff and accepted by the trial court for the purpose of ruling on the motion are inadequate upon the basis of controlling Missouri law to support a finding that the statute of limitations was tolled.
The judgment of dismissal is affirmed.