dissenting.
Applying what I conceive to be the principles and purposes underlying statutes of limitation and statutes which toll those limitations, I dissent.
Unknown at common law, limitations of action fixed by statute are designed to assure fairness to defendants; justice requires that claims be asserted before evidence is lost, memories fade, and witnesses become unavailable. Statutes which toll limitations are designed to assure fairness to plaintiffs; delay should not defeat plaintiffs’ rights of action when the delay results from their inability to exercise those rights.
The sole question raised by our writ is whether the facts, taken in the light most favorable to defendants, show that plaintiff was insane at the time the cause of action accrued. This is a question of law rather than fact, and the “plainly wrong or without evidence to support” standard of review, the standard employed where sufficiency of the evidence is challenged, has no application here. What is determinative is the construction put upon the word “insane” as used in the tolling statute.
Citing Code § 1-13.11, the majority hold that a person is insane if he is “an idiot, non compos mentis or deranged at the time his cause of action accrued”. I can accept that construction and yet reject the majority’s conclusion that plaintiff’s condition did not meet that construction. Non compos mentis “is a very general term embracing all varieties of mental derangement.” Black’s Law Dictionary 1200 (rev. 4th ed. 1968). Literally it means “not of sound mind”. Unlike the word “insane”, which has a narrow import in other areas of the law, the phrase “of unsound mind” encompasses all forms of mental infirmity which deprive a person of the ability to manage his affairs, or in the subject context, to understand his legal rights and to institute legal action to vindicate them. I believe the authors of former Code § 8-30 intended the condition activating the toll to include all such forms of infirmity. Manifestly, the General Assembly held that view as it undertook the general revision of Title 8 of the Code. As revised, the tolling statute abandons the word “insane”, employs the phrase “of unsound mind”, and defines a person of unsound mind as one “mentally incapable of rationally conducting his own affairs”. *1090Code § 8.01-229(A). Bearing in mind the purpose of the tolling mechanism, the revisions constitute only a definitional clarification and reaffirmation of the original legislative intent rather than a substantive change in the old statute. See Revisor’s Note.
According to plaintiff’s wife, on March 23, 1971 plaintiff “had gone deeper to sleep”, “couldn’t swallow”, “couldn’t blow his cigarette smoke out”, and “didn’t know anybody”; testifying at the hearing five years later she said plaintiff “still doesn’t know me”, “doesn’t know day from night”, “can’t see”, and “I have to feed him and I have to bathe him and shave him, and clean his teeth.” Entirely aside from this testimony, defendants’ own evidence showed that, at the time plaintiff’s cause of action accrued, he was “stuporous”, although not “totally unconscious”, and that while he could “arouse and respond to some extent”, he was “still definitely confused.” To conclude that the tolling statute was not intended to preserve the rights of such a person is to wink at reality and frustrate the very purpose such statutes are designed to serve.
I would reverse the order sustaining defendants’ plea and restore plaintiff’s motion for judgment to the docket for a trial on the merits.