Andrianos v. Community Traction Co.

• Decision Date: 07 March 1951
• Docket Number: No. 32197,32197
• Citation: 97 N.E.2d 549,44 O.O. 72,155 Ohio St. 47
• Parties: , 44 O.O. 72 ANDRIANOS v. COMMUNITY TRACTION CO.
• Court: Ohio Supreme Court

Page 47

155 Ohio St. 47

97 N.E.2d 549, 44 O.O. 72

ANDRIANOS v. COMMUNITY TRACTION CO.

No. 32197.

Supreme Court of Ohio.

March 7, 1951.

Syllabus by the Court

1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.

2. Section 11224-1, General Code, providing that an action for bodily injury shall be brought within two years after the cause thereof arose, governs all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed on the cause of action and the form in which the action is brought is immaterial.

3. Where a fare-paying passenger sustains bodily injury during his transportation by a common carrier of passengers and thereafter institutes an action against the carrier to recover damages for such injury and the results thereof based on a claimed breach of the implied contract for safe carriage, the two-year limitation for bringing an action prescribed by Section 11224-1, General Code, is controlling and not the six-year limitation contained in Section 11222, General Code, relating to an action on an implied contract.

On February 4, 1949, Christ Andrianos filed his petition in the Court of Common Pleas of Lucas County against the Community Traction Company, a corporation, engaged in business as a common carrier of passengers. Such petition alleged in substance that on the afternoon of November 5, 1945, plaintiff became a fare-paying passenger on one of defendant's buses; that as such bus was being operated northwesterly on Main street in the city of Toledo by one of defendant's employees it was, without the fault of any person other than such employee, driven into a pillar or stanchion of a viaduct, whereby plaintiff sustained certain described personal injuries.

Continuing, the petition alleged plaintiff entered the bus for the purpose of obtaining safe passage to the downtown area of Toledo, and that the defendant, in violation of its contract to provide plaintiff with such safe passage, breached the same in the manner set forth, by reason whereof plaintiff received the personal injuries above noted and was damaged to the extent of $30,000. Defendant demurred to the petition on the ground 'that it appears upon the face of the petition that the cause of action therein set forth did not accrue within two (2) years next prior to the commencement of this action.' Such demurrer was sustained.

Later, by leave of court, plaintiff filed an amended petition, similar in content to the original petition, except that the amended petition contained two causes of action. In the first, plaintiff confined his claim for damages, in the sum of $20,000, to the monetary loss incurred by him with respect to his inability to earn a livelihood and to carry on his business and expressly waived all claims for damages resulting from bodily injuries and the expenses incurred as a result thereof. In his second cause of action, plaintiff specified the personal injuries claimed to have been sustained and asked damages therefor, together with hospital and medical expenses, in the sum of $10,000.

A demurrer was likewise filed to the amended petition on the same ground contained in the demurrer to the petition. Again, the Court of Common Pleas sustained the demurrer and dismissed the amended petition.

An appeal was thereupon perfected to the Court of Appeals, and that court reversed the judgment below and remanded the cause to the trial court for further proceedings. As disclosed by its opinion, the Court of Appeals took the position that where an action is grounded on a claimed breach of the implied contract of a common carrier safely to transport a passenger to his destination, the six-year limitation for bringing an action contained in Section 11222, General Code, applies, rather than the two-year limitation provided by Section 11224-1, General Code.

The cause is now in this court for disposal on its merits following the allowance of a motion to require the Court of Appeals to certify its record.

Streicher, Gorman & Barone, Toledo, for appellee.

Welles, Kelsey, Fuller, Harrington & Seney and Henry W. Goranson, all of Toledo, for appellant.

ZIMMERMAN, Judge.

The sole question before the court on this appeal is whether Section 11222, General Code, with its six-year limitation for bringing an action, or Section 11224-1, General Code, with its two-year limitation is applicable to plaintiff's action. If Section 11222, General Code, applies, the Court of Appeals was correct and its judgment should be affirmed; if the matter is governed by Section 11224-1, General Code, the judgment of the Court of Appeals should be reversed and that of the Court of Common Pleas affirmed.

So far as it is pertinent here, Section 11222, General Code, appearing in the chapter entitled 'Limitation of Actions' and in existence for many years, recites:

'An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued.'

Section 11224-1, General Code, found in the same chapter and effective in 1927, provides:

'An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.'

The rule prevailing in by far the larger number of jurisdictions is that where a statute, specific in terms, limits the time within which any action for 'injuries to the person' or 'bodily injury' may be brought, such statute governs all actions the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, and a general statute, limiting the time for bringing an action growing out of a contractual relationship, is without application. 34 American Jurisprudence, 84, Section 103. Compare 53 Corpus Juris Secundum, Limitations of Actions, § 74, page 1042. A collection of the cases on the subject may be found in Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1313, and Doughty v. Maine Cent. Transp. Co., 141 Me. 124, 39 A.2d 758, 157 A.L.R. 763. Attention is also directed to the later cases of Vandevoir v. Southeastern Greyhound Lines, 7 Cir., 152 F.2d 150, certiorari denied, 327 U.S. 789, 66 S.Ct. 811, 90 L.Ed. 1016; Coates v. Milner Hotels, Inc., 311 Mich. 233, 18 N.E.2d 389; and Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379.

There are several persuasive reasons why Ohio should follow the majority rule. In this state, by virtue of Section 11238,...