Guthrie v. Wilson

¶1*196DISSENTING OPINION

¶2I concur in the granting of the petition to transfer but dissent from the majority opinion for the following reasons:

¶31. It seems to me that the majority opinion in the present case squarely contravenes the holding of the majority in the case of Guy v. Schuldt, et al. (1956), 236 Ind. 101, 138 N. E. 2d 891. In construing §1, of ch. 116 of the Acts of 1941, which is the identical section here in question, the majority opinion, at page 105 of 236 Ind., states:

“The question is, therefore, are there any exceptions to the particular statute of limitations for .malpractice actions set forth above? We do not believe the Acts of 1881 passed nearly fifty years prior to the 1941 statute of limitations on malpractice can be considered an exception thereto. The latter act is a special act, and is absolute in its language. It is clear and unambiguous. It seems to us the Legislature would have stated it was subject .to the exceptions listed in the Acts of 1881 if it had so intended. Sherfey v. City of Brazil (1938), 213 Ind. 493, 13 N. E. 2d 568; Allen v. Dovell (1948), 193 Md. 359, 66 A. 2d 795.”

¶4In Guy v. Schuldt, et al., supra, this court, following Burd v. McCullough, 7 Cir., 1954, 217 F. 2d 159, held that, there were no exceptions to Acts 1941, ch. 116, §1, p. 328, being §2-627, Burns’ 1946 Replacement. This being true, §2-627, supra, then supersedes the statute1 pertaining to minors and applies to all actions of any kind whether the right of action arose before or after the enactment of §2-627, supra.

¶52. The Circuit Court of Appeals, 7 Cir., in Burd v. McCullough, supra,in considering the effect of the 1941 *197limitation statute, held that such statute was not subject to an exception in favor of a minor as provided in the 1881 Act. That is the exact question here presented, and I see no reason for going contrary to the well-reasoned opinion of the Circuit Court of Appeals particularly since we have so recently sustained the principle enunciated in that decision in Guy v. Schuldt, et al., supra.

¶63. This court has repeatedly held that an exception on behalf of minors to statutes of limitations cannot be implied in the absence of an expressed provision therefor. The effect of the majority opinion in the present case is to create such an exception. See: DeMoss and Others v. Newton and Another (1869), 31 Ind. 219, 222; Waugh et al. v. Riley et al. (1879), 68 Ind. 482; Evansville, etc. Co. et al. v. Winsor, by next friend (1897), 148 Ind. 682, 689-690, 48 N. E. 592.

¶74. There is no fraudulent concealment of the alleged act of malpractice upon which the present case is based, and the exception engrafted onto the 1941 Act2 by the majority opinion in Guy v. Schuldt, et al., supra (1956), 236 Ind. 101, 138 N. E. 2d 891, is not applicable here.

¶85. In Guy v. Schuldt, et al., supra (1956), 236 Ind. 101, 104, 138 N. E. 2d 891, it is said:

“As a general rule a statute of limitations must be pleaded and treated as a defense and is not available by way of demurrer.”

¶9However, I think the complaint in the present case furnishes an exception to the above rule for the reason that Acts 1911, ch. 157, §2, p. 415, being §2-1007, Burns’ 1946 Replacement, provides that the defendant may demur to a complaint when it appears upon the face *198thereof (Fifth) that it does not state facts sufficient to constitute a cause of action. That is the situation here. I am also of the opinion that the limitation of the action herein was properly raised by a demurrer for the further reasons stated in the dissenting opinion in Guy v. Schuldt, et al., supra (1956), 236 Ind. 101, 114-115, 138 N. E. 2d 891, 898.

¶10I would affirm the judgment of the trial court.

¶11Note. — Reported in 162 N. E. 2d 79.