Dorris v. McClanahan

ROBERTSON, Judge,

dissenting.

I respectfully dissent.

I have no quarrel with the majority opinion’s conclusion that the two-year Illinois statute of limitations controls in this case. I part company with the majority opinion, however, when it invokes Mo.Const. art. I, § 14, allowing this action to proceed in Missouri after it has been fully barred by the laws of Illinois.

Section 516.190, RSMo 1986, provides that “[wjhenever a cause of action has been fully barred by the laws of the state ... in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.” Section 516.190 bars an action in Missouri only when the plaintiff’s cause of action is fully barred by the laws of the state in which the action originated. Here, the “originating” state is Illinois. Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819 (Mo.App.1975); Dzur v. Gaertner, 657 S.W.2d 35, 36 (Mo.App.1983). Thus, the pertinent inquiry under § 516.190 is whether a plaintiff’s cause of action “has been fully barred by the laws of the [foreign] state.”

Ill.Rev.Stat. Ch. 83, para. 22 (1981)1 provides that if a plaintiff entitled to bring an action for damages for injury to the person is within the age of 18 years when his cause of action accrues, he must bring the action within two years after the disability of minority is removed. Plaintiff celebrated his eighteenth birthday on August 30, 1977, sixteen days after the accident. On that date he was no longer a minor under Illinois law; the Illinois statute of limitations began to run. On August 30, 1979, the two-year period of limitations established by Illinois law expired. By that *875date, plaintiff had not filed his suit; his cause of action was fully barred under Illinois law. Under the plain, unambiguous language of § 516.190, plaintiffs cause of action is barred in Missouri, as well. Where the language of a statute is plain and admits of but one meaning, there is no room for construction. Blue Springs Bowl v. Spradling, 551 S.W.2d 596 (Mo. banc 1977).

The appellant, and the majority opinion, argue that § 516.190 must be harmonized with the legislative intent expressed in § 516.170. Section 516.170 provides that:

if any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be ... within the age of twenty-one years, ... such persons shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.-370 limited after such disability is removed.

In the area of limitations of actions, it is a generally accepted rule that when borrowing the statute of limitations of a foreign state, the applicable tolling provision of that state is borrowed as well. E. Scoles and P. Hay, Conflict of Laws, L.Ed., § 3.11 (1984); Davis, Tort Liability and the Statutes of Limitation, 33 Mo.L.Rev. 171, 216 (1968); 67 A.L.R.2d 216, 219 (1959).2 This legal tenet was summarized in Devine v. Book, 314 S.W.2d 932, 935 (Mo.App.1958), wherein the court stated that:

[t]he effect of the borrowing statute is not to extend the procedural law of one state into another, but the borrowing state adopts and makes as its own (special statute of limitations) the statute of the other. But when such statute is So borrowed, it is not wrenched bodily out of its own setting, but taken along with it are the court decisions of its own state which interpret and apply it, and the companion statutes which limit and restrict its operation.

The majority opinion dismisses this language as mere dicta. Yet, the issue in Devine was “whether, when [borrowing a foreign statute of limitations], we take along with it the [foreign] tolling statute, or whether we take the [statute of limitations] alone and uninhibited by such tolling statute.” 314 S.W.2d at 935. The cited language, far from being dicta, is the court’s conclusion of law in answer to the question presented.

That the legislature contemplated that our courts would borrow not only the applicable statute of limitations, but also pertinent tolling provisions is evidenced by the legislative histories of §§ 516.170 and 516.-190. A statute tolling an otherwise applicable statute of limitations for minors has been the law in Missouri since at least 1825. Laws of Mo.1825, p. 510-1, § 3. Section 516.190 has remained unchanged since its initial adoption in 1899. § 4280, RSMo 1899. As a matter of construction, assuming arguendo that construction is warranted, it must be presumed that the legislature, which last amended § 516.170 in 1983, has been and is aware of not only the plain language of § 516.190, extant since 1899, but also of Devine, 314 S.W.2d 932.

In an attempt to distinguish Devine and Handlin v. Burchett, 270 Mo. 114, 192 S.W. 1016 (1917), the majority turns to Strahler v. St. Luke’s Hospital, 706 S.W.2d 7, 11 (Mo. banc 1986), as an affirmation of this Court’s intent to protect a minor’s right of access to the courts in his own right.

This Court has zealously protected our constitutionally guaranteed right of “access to the courts.” State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979); Strahler. This case, however, raises no issue of access to the courts. Appellant could have brought this action in his own right in the courts of Illinois within two years of his eighteenth birthday. He had access to the courts of Illinois. More*876over, appellant had access to the courts of Missouri. Under § 507.115, RSMo 1986,3 appellant could have brought this action in his own name as the real party in interest, once he reached the age of eighteen.

Finally, I am unable to agree with the majority opinion’s conclusion that the legislature enacted § 516.170 “to protect a minor’s right to access to the courts in his own right,” apparently without regard to the plain language of § 516.190 or similar statutory enactments. After all, it was the General Assembly’s disregard for a minor’s right of access to the courts that prompted a majority of this Court to declare a portion of the legislature’s statute of limitations for medical malpractice unconstitutional in Strahler.

Because I believe plaintiff’s cause is fully barred in Illinois and, therefore fully barred in Missouri under § 516.190, I dissent.

. Repealed, currently Ill.Rev.Stat. Ch. 110, para. 13-215 (1983).

. Cf. Turner v. Missouri Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455 (1940), wherein this Court found that the Missouri tolling provision should operate in conjunction with the Kansas statute of limitations made applicable by the borrowing statute. Turner is easily distinguishable by the fact that the Kansas tolling statute was not pleaded in that case.

. S.B. 500, § 1, Laws of Missouri 1976, p. 765.