Bell v. Kansas City, Memphis & Birmingham Railroad Co

• Decision Date: 12 January 1891
• Citation: 8 So. 508,68 Miss. 19
• Parties: T. M. BELL v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO
• Court: Mississippi Supreme Court

8 So. 508

68 Miss. 19

T. M. BELL v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD CO

Supreme Court of Mississippi

January 12, 1891

October 1890

FROM the circuit court of Marshall county, HON. JAMES T. FANT Judge.

On May 9, 1889, appellant instituted this action against the appellee, alleging that on May 5, 1888, plaintiff was loading his wagon with freight at the depot of defendant, when the servants of the company, "unnecessarily, negligently and wilfully," suddenly discharged steam from an engine and sounded the whistle, causing plaintiff's team to take fright and run away, throwing him from the wagon, whereby his hip was broken and he was otherwise injured.

Defendant pleaded that the action was barred under § 2673, code 1880, which requires actions for "assault, battery maiming, false imprisonment, malicious arrests" etc., to be brought within one year. Plaintiff demurred on the ground that this statute was not applicable, claiming that the action could be brought at any time within six years. The demurrer was overruled, and, plaintiff declining to plead further, judgment was entered against him, from which he appeals.

Reversed and remanded.

Strickland & Bates, for appellant.

1. Section 2673 of the code has no application to this case. The injuries complained of cannot be regarded as the result of an "assault, battery, or maiming." Maiming is synonymous with mayhem, and is used in its technical common-law sense in this statute.

2. Section 1510 of the code is not applicable, because that section relates only to actions for injuries causing death. It governs when the suit is brought by the surviving husband, wife, parent or child, and has no application to a suit by the personal representative on a cause of action which survives. Railroad Co. v. Phillips, 64 Miss. 703.

3. An action of this character may be brought within six years. Code 1880, § 2669.

J. W. Buchanan, R. S. Stith, and Wallace Pratt, for appellee.

1. To maim is to mutilate, disfigure, or destroy any limb or member. Code 1880, § 2920.

Criminal intent is necessary to constitute mayhem; but it is not essential to plaintiff's right to recover in a civil action, wherein damages are allowed for injuries arising either out of a criminal act or mere negligence. The statute bars the civil action without reference to motive. Code 1880, § 2673.

If the injuries described amounted to maiming, the action is barred in one year under this section, and it is immaterial that the word maiming is not used in the declaration. This statute relates exclusively to the limitation of civil actions, and it is manifest that the word maiming therein is not used in a technical sense, but in its ordinary acceptation. Webster says it means to "deprive of the use of a limb so as to render a person less able to defend himself in fights or to annoy his adversary." If this is substantially what the...