Chesapeake & N. Ry. v. Speakman

• Decision Date: 29 January 1903
• Citation: 71 S.W. 633,114 Ky. 628
• Parties: CHESAPEAKE & N. RY. v. SPEAKMAN.
• Court: Kentucky Court of Appeals

71 S.W. 633

114 Ky. 628

CHESAPEAKE & N. RY. v. SPEAKMAN.

Court of Appeals of Kentucky.

January 29, 1903

Appeal from circuit court, Allen county.

"To be officially reported."

Action by Charles Speakman against the Chesapeake & Nashville Railway. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. C Goad, Humphrey, Burnett & Humphrey, and Dismuke &amp Baskerville, for appellant.

L. M McQuown, for appellee.

HOBSON J.

Appellee Charles Speakman, was a brakeman in the service of appellant, and while thus engaged was injured on July 22, 1899, by reason of a trestle giving away, precipitating the train some 30 feet to the ground below. The giving away of the trestle was due to the fact that the timbers had become rotten. While there is some conflict in the evidence as to the extent of his injuries, the verdict of the jury for $1,500 is not excessive, or palpably against the evidence. The instructions fairly submitted the questions of fact to the jury, and there is but one matter that we deem it necessary to notice at length. The action was not filed until January 5, 1901. The defendant pleaded limitation of one year. The plaintiff replied, in substance, that he had been prevented from bringing the action by the fraud of the defendant, and that it was estopped to plead limitation. We see no objection to the form in which the issue was raised. The matter set up in the reply was in avoidance of the plea of limitation made in the answer, and was properly pleaded in the reply. The court, by an instruction, aptly submitted to the jury the truth of these facts, and, they having found for the plaintiff, the question is, were the facts sufficient to stop the running of the statute? For, while the evidence was conflicting, the verdict in favor of the plaintiff is not palpably against the evidence. The facts referred to are as follows, the plaintiff's testimony being taken as true: Shortly after he was hurt, and while he was sick, appellant's superintendent represented to him that, if he would not sue appellant, his time should be allowed to run on, and his wages paid until he recovered; also that he would be paid by appellant for his injuries when time showed what their extent was; and he should have in its service a permanent position as long as he lived, or as long as the superintendent remained on the road. These promises were renewed from time to time until after the end of the year from the time he was hurt, and then he was told that they would pay him nothing, and that his claim was barred by limitation. It is shown by the proof that the company did keep him on its pay roll from the time he was injured until he left its service shortly before the bringing of the suit, and paid him full wages for the time he was sick. It was charged in the pleading that these representations and promises were falsely and fraudulently made for the purpose of inducing him to bring no action within the year, and that he was induced by them not to bring the action, believing that the promises were made in good faith, and would be kept. Appellee testified that shortly before the year ran out the promises were renewed, and he was requested to get up proofs for the payment of his claim, which he did, and submitted to the superintendent. These proofs are produced, but the superintendent says they were gotten up for a different purpose.

It is earnestly insisted for appellant that a promise to pay can only revive a contract debt, and that an acknowledgment of liability for a tort that is barred by limitation cannot revive it. This is true, but the promises and representations here relied on were made before the claim was barred by limitation, and the question is, may the defendant be estopped, by conduct like this, from relying on the lapse of time during which, by such means, it prevented the bringing of the action? Section 2532, Ky. St., is as follows "When a cause of action mentioned in the third article of this chapter accrues against a resident of this state, and he, by departing therefrom or by absconding or concealing himself, or by any other indirect means obstructs the prosecution of the action,...