Crumrine v. Cummings, 38500
| Citation | 240 P.2d 463,172 Kan. 290 |
| Decision Date | 26 January 1952 |
| Docket Number | No. 38500,38500 |
| Parties | CRUMRINE v. CUMMINGS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Following the rule laid down in Muckenthaler v. Noller, 104 Kan. 551, 180 P. 453, it is held that under G.S.1949, 60-313, a barred cause of action cannot be used in a cross-petition for the purpose of obtaining affirmative relief, but may be set up in an answer as a matter of pure defense.
D. G. Smith, of Girard, P. E. Nulton and R. L. Letton, both of Pittsburg, were on the briefs for appellant.
Carl Pingry, of Pittsburg, and Jack Goodrich, of Parsons, were on the briefs for appellee.
This is an appeal from an order of the trial court overruling appellant's demurrer to the cross-petition filed by appellee in an action for damages brought by appellant. The facts insofar as this appeal is concerned may be briefly stated as follows.
On February 20, 1947, appellant filed his petition in the district court of Crawford County against appellee to recover damages alleged to have resulted from appellee's negligent operation of his automobile resulting in a collision with appellant's automobile on February 15, 1947. On March 13, 1951, three years and 26 days after the collision occurred, appellee filed his answer containing a general denial of appellant's allegations and pleading the defense of contributory negligence. On the same day and with his answer, appellee filed a cross-petition seeking affirmative relief to recover damages from appellant by reason of appellant's negligence in the same collision in an amount more than double the amount sued for by appellant. To appellee's cross-petition, appellant filed a demurrer asserting the cross-petition did not state a cause of action in favor of appellee and against appellant and that the cross-petition showed on its face that the cause of action set up therein was barred by the two-year statute of limitations at the time it was filed.
The sole question involved in this appeal is whether the statute of limitations prevents appellee from filing a cross-petition seeking affirmative relief against appellant in an action arising out of the same automobile collision pleaded by appellant in his petition, when appellant's petition was filed within the two-year statutory period but the cross-petition was not filed until more than two years after the collision.
At the outset it may be stated that actions for injury to the rights of another such as pleaded in this action can only be brought within two years after the cause of action shall have accrued. G.S.1949, 60-306.
It will be noted that the cause of action of either party, if any, accrued on February 15, 1947, the date of the collision, and would be barred within two years thereafter by the provisions of the mentioned statute. Appellant filed his petition within the statutory period; however, appellee's cross-petition was not filed within the statutory period. It is appellee's contention that the cause of action pleaded in his cross-petition is not barred by any statute of limitations for the reason that when appellant filed his petition against appellee, the running of any statute of limitations was at that time tolled upon any action or cross-petition which appellee might have or claim to have against appellant growing out of the same transaction pleaded in appellant's petition. We cannot agree with appellee's contention. G.S.1949, 60-313 provides: 'When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense.'
The purpose of statutes of limitation is not to suppress or deny a defendant the right to plead a pure defense, 34 Am.Jur. 57, and in interpreting the above statute, this court has held that it has no application to pleading matters of pure defense. Collins v. Richardson, 168 Kan. 203, 212 P.2d 302. In the instant case an answer was filed by appellee setting up the pure defense of contributory negligence on the part of appellant which, if proved, would bar any right of recovery against appellee. The statute of limitations does not apply to this matter of pure defense. In addition to the answer, appellee filed a cross-petition asking damages.
We have held, in construing the provisions of G.S.1949, 60-313, that a cause of action or demand barred by the two-year statute of...
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