Emerson v. Southern Ry. Co.

• Decision Date: 21 August 1981
• Citation: Emerson v. Southern Ry. Co., 404 So.2d 576 (Ala. 1981)
• Parties: Kenneth Maynard EMERSON, etc., et al. v. SOUTHERN RAILWAY COMPANY, a corp., et al. 80-221.
• Court: Alabama Supreme Court

Page 576

404 So.2d 576

Kenneth Maynard EMERSON, etc., et al. v. SOUTHERN RAILWAY COMPANY, a corp., et al.

80-221.

Supreme Court of Alabama.

Aug. 21, 1981.

Rehearing Denied Sept. 25, 1981.

Lloyd W. Gathings of Emond & Vines, Birmingham, for appellants.

Crawford S. McGivaren, Jr. and Tony G. Miller of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellees.

TORBERT, Chief Justice.

This is an appeal from a summary judgment in favor of defendants. The trial court held that plaintiffs' claims seeking recovery for personal injuries and for loss of consortium were barred by the statute of limitations. We affirm in part, reverse in part, and remand.

The injuries from which this controversy arose occurred on September 9, 1977. On that day, Kenneth Maynard Emerson was injured while engaged in the "rebuilding" of a railroad trestle in Dallas County, Alabama. All parties to the case have stipulated that as a result of the injuries, made the basis of this suit, Kenneth Emerson was rendered and has remained non compos mentis, within the meaning of Code 1975, § 6-2-8.

On July 14, 1978, Mary Ann Emerson, the wife of Kenneth Emerson, was appointed his legal guardian. The present action was instituted on March 21, 1980, against Southern Railway Company, the owners of the trestle; Ronald Wilkenson and William Bibb Goodwyn, supervisory co-employees of Kenneth Emerson; and American Mutual Liability Insurance Company, the workmen's compensation carrier for W. B. Goodwyn, Inc., Mr. Emerson's employer. In Count A of the complaint Mrs. Emerson, as guardian, sought recovery for her husband's personal injuries, alleging common law negligence or wantonness as to all defendants. Additionally, recovery was sought pursuant to the Federal Employers Liability Act; however, this claim, having a three-year statute of limitations, is not involved on appeal. In Count B Mrs. Emerson, individually, claimed damages for loss of consortium.

Defendants filed motions for summary judgment, contending plaintiffs' claims were barred by the statute of limitations since more than one year had elapsed between Mrs. Emerson's appointment as guardian and the filing of this suit. These motions were supported by Code 1975, § 6-2-39(a)(5), the "catch all" provision governing personal injury cases. Plaintiffs opposed the motions, citing Code 1975, § 6-2-8. The trial court granted summary judgment to all defendants on plaintiffs' negligence or wantonness claims and on the claim for loss of consortium. Plaintiffs appeal.

The first issue before this Court is whether the appointment of a guardian for a non compos mentis begins the running of the statute of limitations in a personal injury action. The general rule, accepted by the majority of jurisdictions, is that the appointment of a guardian or committee for a mentally incompetent or non-age person does not have the effect of commencing the running of the period of limitations tolled by virtue of the disability. See, e. g., Wolf v. United States, 10 F.Supp. 899 (S.D.N.Y.1935); Zini v. First National Bank, 228 Ark. 325, 307 S.W.2d 874 (1957). Funk v. Wingert, 134 Md. 523, 107 A. 345 (1919); Finney v. Speed, 71 Miss. 32, 14 So. 465 (1893).

In Wolf v. United States, 10 F.Supp. 899 (S.D.N.Y. 1935), recovery was sought on a war risk policy. A committee had been appointed for the plaintiff, an incompetent, in 1922; and suit for recovery was filed in March 1933. The World War Veterans' Act of 1924, § 19, as amended, 38 U.S.C. § 445, contained a proviso, analogous to our tolling statute, which suspended the running of the statute of limitations in favor of incompetents. The court held that the appointment of a committee was not a removal of the plaintiff's disability; therefore, the limitation period had not run as to his claim. Further, the court, citing Monroe v. Simmons, 86 Ga. 344, 12 S.E. 643 (1890); Funk v. Wingert, 134 Md. 523, 107 A. 345 (1919); and Finney v. Speed, 71 Miss. 32, 14 So. 465 (1893), stated that a statute which allows the institution of an action within a specific time after the removal of a disability, amounts to a saving clause that covers the time of continuance of infancy or insanity.

Code 1975, § 6-2-8(a), provides such a savings clause:

(a) If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time such right accrues, below the age of 19 years, insane or imprisoned on a criminal charge for any term less than for life, he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action, make entry, or defend; provided, however, that no disability shall extend the period of limitations so as to allow such action to be commenced, entry made or defense made after the lapse of 20 years from the time the claim or right accrued. (Emphasis added.)

Section 6-2-8 demonstrates legislative response to the need to protect individuals suffering under certain disabilities. This Court in past decisions has recognized the importance of § 6-2-8, and has clearly adhered to the general rule espoused in Wolf in tolling the statute of limitations in favor of infants and incompetents. Hood v. Johnston, 210 Ala. 617, 99 So. 75 (1924); Burford v. Steele, 80 Ala. 147 (1885); Moore v. Wallis, 18 Ala. 458 (1850).

In Hood v. Johnston, 210 Ala. 617, 99 So. 75 (1924), plaintiff, upon reaching majority filed an action in ejectment for recovery of an interest in land. The defendants in Hood, as in the present case, claimed that the appointment of a guardian began the running of the limitation period and that plaintiff's claim was barred. This Court, under § 4846 of the 1907 Code (presently § 6-2-8), held that an infant upon becoming of age is entitled to sue in ejectment to recover an interest in land, regardless of the acts of his guardian during adverse possession of another. Specifically stated, "the authorities hold that, whatever may or may not have been done by his guardian, the plaintiff, upon coming of age, was entitled, under the statute (Code, § 4846), to sue in his own name." Hood at 619, 99 So.75.

Alabama case law also recognizes an exception to the general rule in situations where the legal title or right of action is in the guardian/trustee and not in the infant or incompetent. See, e. g., Spann v. First National Bank, 240 Ala. 539, 200 So. 554 (1941); Cruse v. Kidd, 195 Ala. 22, 70 So. 166 (1915); Molton v. Henderson, 62 Ala. 426 (1878). In these cases, the statute of limitations does begin to run.

Appellees contend that Spann v. First National Bank, 240 Ala. 539, 200 So. 554 (1941), stands for the proposition that the appointment of a guardian, in any situation, begins the running of the limitation period. They further contend that the guardian's capacity to sue is all that is required, and that legal title or the right of action resting in the trustee is not determinative. However, the correct reading of Spann reflects our recognition and adherence to the general rule in tolling the limitation period for individuals who are incapacitated, and our recognition of the exception to the general rule.

In Span a comparison was made of the facts to a like situation in Scott on Trusts, stating that there were cases in which the beneficiaries of a trust, although under an incapacity, would be precluded from bringing suit if the trustee was barred by the statute of limitations. Further, the court, citing Cruse v. Kidd, 195 Ala. 22, 70 So. 166 (1915), stated, "(T)he princip...