Breining v. Lippincott

• Decision Date: 03 July 1916
• Docket Number: 105
• Citation: 187 S.W. 915,125 Ark. 77
• Parties: BREINING v. LIPPINCOTT
• Court: Arkansas Supreme Court

187 S.W. 915

125 Ark. 77

BREINING v. LIPPINCOTT

No. 105

Supreme Court of Arkansas

July 3, 1916

Appeal from Pulaski Circuit Court; Third Division; G. W. Hendricks Judge; reversed.

STATEMENT BY THE COURT.

Appellant instituted this suit January 25, 1915, against the appellee to recover damages for the alleged debauchery by him of appellant's daughter. Among other things, appellant alleged that she was a widow; that she had a daughter who was of the age of seventeen, who was employed by the appellee to work for him in connection with his business in operating picture shows; that appellee took advantage of his position as her employer and of her youth and inexperience, and "seduced her by threats, force, flattery and promises of money to have sexual intercourse with him," and that he did have sexual intercourse with her on or about the first day of April, 1913, and as a result of such intercourse there was the birth of a child; that such acts of the appellee caused great and untold humiliation to the appellant and deprived her of the services, companionship and society of her daughter, and caused her to expend the sum of $ 200.00 for medical services, drug bills and nurse hire in connection with the birth of the child. Other elements of damages are also set forth in the complaint. She alleged that the acts of appellee were wantonly, wilfully and maliciously done. She prayed for compensatory damages in the sum of $ 50,000, and punitive damages in the sum of $ 25,000.

Appellee answered denying the allegations of the complaint, and setting up, as part of his answer, the one year statute of limitations.

The court treated the plea of the statute of limitations as a special demurrer to the complaint and sustained it, finding that the complaint on its face shows "that this action was not brought within one year after the cause of action accrued." The court thereupon entered judgment in favor of the appellee dismissing appellant's complaint, and this appeal followed.

Judgment reversed and cause remanded.

Bradshaw Rhoton & Helm, for appellant. Gardner K. Oliphint, on the brief.

1. The one year statute, Kirby's Digest, § 5065, does not apply to this case. This is not an action for "Criminal Conversation" and 24 Ark. 55 does not control. 54 Ark 404; 71 Ark. 71; 160 F. 260; 83 Ark. 71; 6 Bacon's Abridgements, p. 551, 374; 52 L. R. A. (N. S.) 85, 91; 4 Suth. on Dam. (3 ed.) § 1283; 1 Sedgw. on Dam. (9 ed.) § 376; 56 P. 529; 60 Kans. 341; 44 L. R. A. 757; 72 Am St. Rep. 360; 31 S.E. 268; 98 S.W. 986, 83 Ark. 6; 128 N.W. 1084; 164 Mich. 26; Annot. Cases; 1912, B. 65.

2. But if it does apply, the statute cannot be taken advantage of by demurrer. 54 Ark. 468; 58 Id. 136; 99 Id. 377; 74 Id. 101; 70 Id. 161; 91 Id. 400; 96 Id. 163; 92 Id. 465; 31 Id. 684; 34 Id. 165; 49 Id. 252; 46 Id. 438; 45 Id. 333, etc. The defense of the statute of limitations is not a meritorious one. 10 Ark. 428. The statute did not begin to run until loss of services occurred and the action is not barred. 54 Ark. 404, 406. There must be a complete and present cause of action. 10 Ark. 228; 25 Id. 462; 32 Id. 131; 1 Duval (Ky.) 313; 5 Bush, 568; 16 S.W. 473; 39 Id. 341; 27 N.C. 16; 22 W.Va. 275; 153 Ind. 591. The cause should be reversed.

3. All forms of action were abolished by the Code. This action is founded on tort; it is not for criminal conversation but for "personal injuries" and the one year statute does not apply. 52 L. R. A. (N. S.) 85, 91; Am. & Eng. Ann. Cases, 1912, B. 65 and note; 113 Ga. 987; 23 Hun. 71; 120 Ga. 651; 102 Am. St. 118. This court should abolish the fiction of law requiring a parent to sue as a matter for loss of services. The Code was adopted after the case of Patterson v. Temple, 24 Ark. 55 was decided and the rule no longer applies. 98 F. 702; 71 Ark. 76.

Jno. D. Shackelford and Gus Fulk, for appellee.

1. The action was barred by the one year statute of limitations. Gould's Dig., § 11. Ch. 106. This was a special action in the case and the law is not changed by § 1 Code Civil Proc. 24 Ark. 55; 71 Id. 71; 83 Id. 9; 103 Id. 366. This is simply an action for criminal conversation. Anderson's Law Dict., p. 252; 2 Bosarx. & Pull. 476; 71 Ark. 71.

2. The statute can be raised by demurrer where the complaint shows a bar. 31 Ark. 684; 34 Id. 165; 39 Id. 158; 45 Id. 333; 46 Id. 438; 49 Id. 253.

3. The statute began to run from the date of the seduction. 54 Ark. 406; 3 Sharswood's Blackstone, p. 143, note 26; 35 Cyc. 1305; Ib. 1308; 18 U. C. Q. B. 251; 16 S.W. 473.

OPINION

WOOD, J. (after stating the facts).

In 1862 this court, in Patterson v. Thompson, 24 Ark. 55, held that the right of a father to maintain an action for the seduction of his daughter was barred in one year from the time the cause of action accrued. The statute of limitations under which that case arose and was decided was as follows:

"The following actions shall be commenced within one year after the cause of action shall accrue, and not after: First, all special actions on the case, for criminal conversation, assault and battery, and false imprisonment; second, all actions for words spoken, slandering the character of another; third, all words spoken whereby special damages are sustained." Gould's Digest, chap. 106, § 11.

The effect of the holding in Patterson v. Thompson, supra, is that an action for seduction was a special action on the case, under the one year statute, and in the same class with actions for criminal conversation, assault and battery, false imprisonment, and the other actions named in the section. The court did not hold, and it was not necessary to the conclusion there reached to hold that seduction and criminal conversation were the same and that an action for seduction would be the same as an action for criminal conversation. The court construed the words "all special actions on the case" to include other special actions on the case besides those specifically enumerated and decided that seduction and criminal conversation were in the same class so far as the one year statute of limitations was concerned.

But in 1868 the code of civil procedure was adopted, which abolished the forms of all actions, and provided that there should be but one form of action, which shall be called a civil action. After this the digesters, acting under the authority of the statute "to omit redundant and tautological words and to condense the law into as concise and comprehensive a form as might be consistent with a full and clear expression of the will of the legislature," omitted the words "all special actions on the case." So that the statute now reads as set forth in section 5065 of Kirby's Digest, as follows:

"The following actions shall be commenced within one year after the cause of action shall accrue: First, all actions for criminal conversation, assault and battery and false imprisonment. Second, all actions for words spoken, slandering the character of another. Third, all words spoken whereby special damages are sustained."

This court in Emrich v. Little Rock Traction & Elec. Co. 71 Ark. 71, 70 S.W. 1035, shows that the construction of the digestors, in omitting these words from the statute, had been approved inferentially at least by several decisions of this court citing them. But even if these words had been retained, as held in Emrich v. Little Rock Trac. & Elec. Co. supra, "the meaning of the clause would then be the same as if it had provided, that the following actions shall be barred in one year after they accrue: First, all special actions on the case for criminal conversation; all actions for assault and battery, and for false imprisonment." The court in Emrich v. Little Rock Trac. & Elec. Co. supra, thus expressly overruled the holding in Patterson v. Thompson, supra, that the one year statute of limitations applies to other special actions on the case than those for criminal conversation, etc., expressly named therein. This court has approved the construction given the statute in Emrich v. Little Rock Trac. & Elec. Co. supra, in St. L., I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380; St. L. I. M. & S. Ry. Co. v. Robertson, 103 Ark. 361, 146 S.W. 482. It follows that the one year statute, as it has been construed by this court, is applicable only to those actions that are specifically enumerated therein. Actions for criminal conversation therefore are barred within one year. Is the present action one for criminal conversation?

Since the legislature has specifically designated that an action for criminal conversation, assault and battery, etc., shall be brought within one year and has also expressly provided that all actions not included in the foregoing provisions shall be commenced within five years (Kirby's Digest, § 5074), it is not within the province of the court to include within the term "criminal conversation" actions "of a like nature." The statute is plain and the intent of the legislature must be gathered from the words used, and where the words used are unambiguous courts cannot add to or take from them their obvious meaning. The legislature used the specific term "criminal conversation," which had a well defined meaning.

In Gill v. L. & N. Railroad Co., 160 F. 260, 263, it is said: "One of the well recognized rules of construction of statutes is that we are to look to the state of the law when the statute was enacted in order to see for what it was intended as a substitute; and another is that it is not to be presumed that the statute was intended to displace the former law, whether it be statute or common law, further than was first necessary to give it place and operation."

Mr Sutherland says: "The best construction of a statute is to construe it as near to the rule and reason of the common...