Coady v. Reins

• Decision Date: 31 January 1872
• Citation: 1 Mont. 424
• Parties: COADY, appellant, v. REINS, respondent.
• Court: Montana Supreme Court

1 Mont. 424

COADY, appellant,

v.REINS, respondent.

Supreme Court of the Territory of Montana.

January Term, 1872.

Appeal from the Third District, Lewis and Clarke County.

THIS action was heard by the court, WADE, J., in August, 1871, and judgment rendered for Reins on his demurrer to the complaint. The facts are stated in the opinion.

G. G. SYMES and WARREN & SANDERS, for appellant.

This action was limited by the original statute of limitations to two years from the time the cause of action arose. Acts 1865, 467, § 8. This was amended, and the time was extended to five years. Acts 1870, 62.

The statute in force at the time the action was brought governs it. The old law was expressly repealed by the amendment of 1870. The complaint shows continuing damages resulting after the limitation had ceased to bar recovery under the old law in force, when the act from which damages resulted was done.

A plea of the statute of limitations is a plea of the forum, affects only the remedy, and does not affect the right, unless the time is unreasonably shortened. Ogden v. Saunders, 12 Wheat. 350; 1 Bouv. Inst. 334; 2 Harrison's Dig. 3737; Ang. on Lim. 63; Call v. Hager, 8 Mass. 429;Hayward v. Judd, 4 Minn. 487; Sedgw. on Stat. Law, 659.

The statute is prospective. It applies to all suits brought after its passage, and affects only the remedy. McCrea v. Craig, 23 Cal. 522. The time when the contract was made, or act done, under which the cause of action arose, is immaterial. Ross v. Duvall, 13 Pet. 64;Bank of Alabama v. Dalton, 9 How. (U. S.) 527;Patterson v. Gaines, 6 Id. 602;Loring v. Allen, 9 Cush. 70.

In actions on the case for negligence the statute of limitations begins to run from the time the consequent damages accrue. Ang. on Lim. 299-319; Starkie on Slander, 473, 474; Dyster v. Battye, 3 Barn. & Ald. 448; Fisher v. Pond, 1 Hill, 672.

Where damages continue, only those can be recovered which have accrued within the time of limitation. Ang. on Lim., § 307.

There was no limitation law in force at the time the suit was brought, except the amendment of 1870.

CHUMASERO & CHADWICK, SHOBER & LOWRY, and E. W. TOOLE & J. K. TOOLE, for respondent.

The statute of limitations commenced to run from the time the act was done by respondent. Appellant cannot avail himself of the continuando in his complaint. Ang. on Lim., § 141. The statute does not run from the time of the consequent injuries to appellant. Argall v. Bryant, 1 Sandf. 98.

The statute of 1865 governs the case and not the act of 1870. To give the last act force and application to this cause would give it a retroactive operation. Laws can only attach to future action. They cannot attach to conduct prior to the creation of the law. The act of 1870 was not in existence when the cause of action accrued in this case. The cause of action accrued on February 28, 1868, and, under the law then in force, the suit must be commenced within two years, by February 28, 1870, or it was barred Acts 1865, 466, 467, §§ 1, 8; Acts 1870, 62.

The complaint was filed April 12, 1871, and the rights of the parties cannot be determined by the act of 1870. Thompson v. Alexander, 11 Ill. 55. No statute should be so construed as to give it a retrospective operation. Battles v. Forbes, 18 Pick. 533;Dash v. Van Vleeck, 7 Johns. 477. Statute should not be construed to act on rights already existing. Johnson v. Burrell, 2 Hill, 238;Woods v. Dudley, 11 Paige, 403.

MURPHY, J.

This suit was commenced on the 12th day of April, 1871, by Coady, to recover damages against Rein, for unskillfulness, etc., as a physician and surgeon, in setting and treating her fractured and dislocated arm and elbow, on the 28th day of February, 1868.

On the 11th day of July, 1871, the defendant filed a demurrer to the amended complaint, setting forth as the grounds thereof: 1. That the action was barred by the statute of limitation; and, 2. That the complaint did not state facts sufficient to constitute a cause of action.

The demurrer was sustained and judgment for costs rendered against the plaintiff by the court below, from which she has appealed to this court.

But the only question necessary for us to consider in this connection is, is the action barred by the statute of limitation?

There have been but two acts regarding limitations passed in the Territory, in February, 1865, and January, 1870, respectively.

The latter amended section 8 of the former, embracing actions of this nature, and repealed all former acts in conflict therewith.

By the former, actions of this character were limited to two years from the time the cause thereof accrued; by the latter, to five years.

Now the question is, which act is to govern in this case. But, when did the right of action accrue? let us first inquire.

The gist of the action in this instance is the negligence and unskillfulness, or breach of duty as laid in the complaint, and not the injury or damage consequent thereon.

If such action were commenced immediately upon a person becoming chargeable in such a case, it is probably true that no more than nominal damages could be recovered, yet it is clear that proof of actual damages may extend to and embrace facts occurring and growing out of the injury, even up to the verdict itself.

But the statute in cases of this nature begins to run, regardless of the form of action, whether case or assumpsit, from the time of the negligence or breach of duty.

And in this case, under the act in force at the time of said negligence or breach of duty, it must be held to have commenced to run from the said 28th day of February, 1868.

And since it is true that, at the commencement of this action, the time limited under the act in force when the cause thereof accrued, had expired, it is insisted by respondent that that fact is conclusive of this case, and therefore the suit is barred.

But it must be borne in mind that said act had been repealed before said time, as limited under it, had expired, and before the action was barred. And, also, that another and new act, extending and enlarging the time within which such actions could be commenced and prosecuted, had gone into full force and effect, while the right of action still existed under the old and original act. And as the statute of...