Allison v. Missouri Power & Light Co.
Decision Date | 02 May 1933 |
Docket Number | 22434 |
Parties | EARL ALLISON, (Plaintiff) Appellant, v. MISSOURI POWER & LIGHT COMPANY, a Corporation, (Defendant) Respondent |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Audrain County. Hon. W. C. Hughes, Judge.
AFFIRMED.
W. E BENNICK
This is an action for damages for personal injuries. demurrer to plaintiff's petition was sustained, and upon his refusal to plead further, judgment was rendered for defendant. Plaintiff's appeal to this court has followed in the usual course.
The only question in the case is whether it may be said to have appeared from the face of the petition that plaintiff's alleged cause of action was barred by limitation of time. As has already been indicated, the point arises on special demurrer, which is the appropriate remedy to be invoked where the petition discloses on its face that the bar of the statute has become complete. Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32; Dennig v. Meckfessel, 303 Mo. 525, 261 S.W. 55; Steinbruegge v. Prudential Insurance Co., 196 Mo.App. 194, 190 S.W. 1018; Lorberg v. Jaynes (Mo. App.), 298 S.W. 1059.
The petition, which was filed on April 6, 1932, after alleging the relationship of master and servant between defendant and plaintiff, set up that "on the day of January, 1926", while plaintiff was engaged in the performance of his duties, a steel bar which he was using was caused "to strike plaintiff in the face with great force and violence", and that "as a result of such blow the bones forming the bridge and interior air passages of plaintiff's nose were broken, crushed, and displaced".
It will be observed that we are making no reference to the specifications of negligence relied upon for a recovery, the sufficiency of the petition not having been questioned on that score.
Recognizing that an action for damages for personal injuries falls within the five-year statute (Sec. 862, R. S. 1929; 2 Mo. St. Ann., see. 862, p. 1143), and that his petition disclosed on its face that the accident had occurred more than six years prior to the commencement of the action, plaintiff set about to plead facts as an exception relieving against the bar of the statute. The matters so pleaded were as follows:
The question is, therefore, whether the matters thus pleaded by way of exception were sufficient to relieve against the bar of the statute, for if not it must obviously follow that the demurrer to the petition was properly sustained. Garth v. Motter, 248 Mo. 477, 154 S.W. 733; Petty v. Tucker, 166 Mo.App. 98, 148 S.W. 142; Steinbruegge v. Prudential Insurance Co., supra.
The determination of this question revolves around the construction and effect to be accorded the concluding provision of Section 860, R. S. 1929 (2 Mo. St. Ann., sec. 860, p. 1136), which provides that in personal actions the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and that if there is more than one item of damage, then the last item, so that all resulting damage may be recovered and full and complete relief obtained.
Such provision came into the statute by way of amendment in 1919 (Laws 1919, p. 211), and has since been...
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