Allison v. Missouri Power & Light Co.

• Decision Date: 02 May 1933
• Docket Number: No. 22434.,22434.
• Citation: 59 S.W.2d 771
• Court: Missouri Court of Appeals
• Parties: ALLISON v. MISSOURI POWER & LIGHT CO.

59 S.W.2d 771

ALLISON v.MISSOURI POWER & LIGHT CO.

No. 22434.

St. Louis Court of Appeals. Missouri.

May 2, 1933.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be officially published."

Action by Earl Allison against the Missouri Power & Light Company.From a judgment for defendant, plaintiff appeals.

Affirmed.

W. W. Botts, of Mexico, for appellant.

Fry, Hollingsworth & Francis, of Mexico, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries.A 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(section 862, R. S. 1929, Mo. St.Ann. § 862), 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:

"That immediately after the aforesaid occurrence plaintiff was taken to a physician by said foreman, and was assured by said physician that no damage had been done, and plaintiff returned the same day to his said work for the company.Plaintiff says that he made no claim for damages, and suffered no damage that could be ascertained, and suffered no loss of earning power for a period of more than three years thereafter and until June, 1929.

"That at said last mentioned date, he, this plaintiff, was suffering from pains in the air passages of his nose and throat, acute attacks of indigestion, headaches, and difficulty in breathing, all of which were rapidly diminishing his strength and ability to work.He thereupon consulted the `Company physician,'Dr. L. O. Nichols of Moberly, Missouri, and learned then for the first time that the said injury had been done to the said bones of his nose, and that said injury was the cause of his said suffering and loss of ability to work.

"That the crushed and dislocated condition of said bones and the consequent abnormal growths therein had closed the external air passages and caused a chronic condition of inflammation and infection therein from which poisonous mucus was escaping into his stomach and lungs, thereby causing the suffering and loss of strength before mentioned.Plaintiff was informed by said physician that a surgical operation was necessary to save his life.

"Plaintiff says that his said condition was thereupon made known to the defendant, and that defendant on or about June, 1929, advanced to plaintiff money for his expected loss of time and to pay for said operation.That plaintiff promptly underwent said operation by a surgeon of good repute, but that said operation failed to relieve the trouble, and his condition has grown steadily worse, notwithstanding that he has spent much time at heavy cost in money in hospitals and seeking relief by change of climate.That he is now unable to earn a living by his labor, that said chronic condition of infection continues, and that he is a permanent invalid without hope of regaining his health. * * *

"Plaintiff says that while it is true that the breach of duty owed to him by defendant and its said foreman, herein complained of, occurred in January, 1926, that the damage resulting therefrom was not sustained and was not capable of ascertainment until after June, 1929, at which time plaintiff's health failed and his ability to work became seriously impaired."

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(Mo. St.Ann. § 860), 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...