Emrich v. Little Rock Traction & Electric Co.

• Decision Date: 29 November 1902
• Citation: 70 S.W. 1035,71 Ark. 71
• Parties: EMRICH v. LITTLE ROCK TRACTION & ELECTRIC COMPANY
• Court: Arkansas Supreme Court

70 S.W. 1035

71 Ark. 71

EMRICH v. LITTLE ROCK TRACTION & ELECTRIC COMPANY

Supreme Court of Arkansas

November 29, 1902

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

Affirmed.

STATEMENT BY THE COURT.

Action brought by the plaintiff, Emrich, against the Little Rock Traction & Electric Company, alleging that said defendant negligently, and contrary to a provision of the city ordinance, placed one of its guy wires within five feet of the ground, and allowed it to be charged with electricity and that, by reason of said negligence, the wife of the plaintiff, not knowing that the wire was was charged received an electric shock from having inadvertently touched said wire, and was greatly injured; that, by reason of said injuries, plaintiff was put to large expense for medicines and medical attention for his wife, and deprived of her society and services, and suffered distress and anxiety of mind, to his damage in the sum of $ 10,000, for which sum he asked judgment.

For answer to this complaint, the defendant set up, among other defenses, that the cause of action sued on did not accrue within one year next before the institution of the suit, and for that reason the defendant alleged that it was barred by the statute of limitations.

The plaintiff demurred to this paragraph of the answer, but the court overruled the demurrer, and, the plaintiff electing to stand on his demurrer, the court gave judgment in favor of the defendant, and plaintiff appealed.

Judgment reversed and case remanded.

F. T Vaughan, for appellant.

At common law there was no limitation to an action. 19 Am. & Eng. Enc. Law (2d Ed.) 145. Statutes of limitations are to be liberally construed. Suth. Const. Stat. § 368. Courts will not presume facts necessary to constitute a bar. 92 N.Y. 239; 103 N.Y. 547; 99 N.Y. 491; 13 Am. & Eng. Enc. Law, 668. The Code has abrogated certain statutes. 45 Ark. 275; 29 Ark. 471; 59 Ark. 326; 46 Ark. 438. Repeal by implication. 24 Ark. 479; 10 Ark. 147, 589; 27 Ark. 420; 32 Ark. 410; 43 Ark. 425; 45 Ark. 92; 47 Ark. 488; 51 Ark. 182; 57 Ark. 508; 59 Ark. 333. The limitation of action brought against a railway company for overflowing land is three years. 35 Ark. 622; 39 Ark.463; 52 Ark. 240; 12 S.W. 331; 62 Ark. 360; 35 S.W. 791. Statutes of limitation operate to extinguish a cause of action sometimes, but generally they bar the remedy by which a cause may be enforced. 33 F. 427; 5 Pick. 193; 10 Yerg. 41, 350; 3 Pet. 270; Ang. Lim. (5th Ed.), § 72; Wood. Lim. §§ 35, 58; 86 F. 9. Railway companies have never succeeded in establishing this special plea of one year. 57 Ark. 287; 63 Ark. 563; 78 F. 679; 86 F. 7; 24 Ark. 55. All sections of the limitation law must be construed as one law. 22 Ark. 111; 24 Ark. 72. The clause of the Revised Statutes relating to special actions in the case has been repealed. Ang. Lim. § 308; 7, 70; 5 Pick. 193; 3 Peters, 270; 8 Cranch, 98; 132 U.S. 13; 62 Ark. 360; 35 Ark. 622; 39 Ark. 463; 52 Ark. 240. At common law, an action for negligence is an "action on the case." Chitty, Pl. 131; 16 B. Mon. 584; And. Law. Dic. 153. The statute of limitations in case of negligence is three years. Sand. & H. Dig. § 4822; 35 Ark. 622; 50 Ark. 250; 62 Ark. 360; 67 Ark. 189; 68 Ark. 433; 86 F. 7; 60 S.W. 650; 71 Ala. 649; Bliss, Code Pl. §§ 4, 5, 9; 53 S.W. 653; Newman, Pl. 404; 19 Am. & Eng. Enc. Law (2d Ed.), 280; 190 Pa.St. 358; 8 Mackey, 221; 67 Ill.App. 114; 20 Ill.App. 543; 90 Md. 315; 70 Minn. 50; 68 Miss. 19; Wood, Lim. 699; 101 Ga. 70; 55 Hun, 172; 34 Hun, 509; 83 N.Y. 595; Gould's Dig. 750-751.

Rose, Hemingway & Rose, for appellee.

Repeals by implication are not favored. Suth. Stat. Const. § 138; 97 N. S. 546; 11 Ark. 103. Implication must be necessary or the intention to repeal clear and unmistakable. 28 Ark. 317; 24 Ark. 479; 34 Ark. 499; 48 Ark. 159; 56 Ark. 45; 50 Ark. 132; 51 Ark. 559; 53 Ark. 417, 339; 60 Ark. 59, 61. The Code was intended to change the forms of action and abolish old modes of procedure, and not in other respects to change existing laws. 29 Ark. 99; Bliss, Code Pl. §§ 5, 6, 19; 44 N.Y. 71; 50 N.Y. 1, 5; 81 N.Y. 296; 7 Bush, 532; 16 B. Mon. 584; 84 Ky. 312; 164 U.S. 393; 162 U.S. 366; 158 U.S. 285; 45 Mo.App. 645; 21 S.E. 323. The Code has not destroyed substantive distinctions between causes of actions. 33 Ark. 336; 56 Ark. 603; 58 Ark. 136; 46 Ark. 444; 58 Ark. 151. The act was not repealed by the Code. 3 Cooley, Blackst. 122; Stephen, Pl. § 52. The statute of one year applies. 99 N.Y. 185; 16 Mass. 65; 107 Mo. 577; 1 Chitty, Pl. 133, 142; Stephen, Pl. § 52; Bliss, Code Pl. § 9; 2 Ohio 348, 355; Busbee, Law (N. C.), 308; Patt. Ry. Acc. Law. § 342; 41 Ark. 476; 164 U.S. 393; 60 Hun, 322; 10 B. Mon. 84; 7 Paige, 198; 18 Ohio St. 169; 24 Ark. 70.

OPINION

RIDDICK, J., (after stating the facts).

This is an action by a husband for damages which he claims to have suffered in consequence of an injury to his wife, caused, as he alleges, by the negligence of the defendant company.

The only question presented by the appeal is whether the one-year statute of limitations applies to an action of this kind. The defendant contends, and the circuit court decided, that the action was barred in one year from the time it accrued.

The reasons upon which the defendant bases its contention that the action was barred in one year are these: Section 6 of the Revised Statutes of 1838 named six classes of action which it provided should be commenced in three years after the cause of action accrued. After describing the first, second and third of these classes, which have no bearing on this case, the statute proceeds as follows: "Fourth, all actions of account, assumpsit or on the case, founded on any contract or liability, expressed or implied; fifth, all actions for trespass on lands, or for libels; sixth, all actions for taking or injuring any goods or chattels."

"Sec. 7. 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 conservation, 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." (Revised Statutes of Ark., pp. 527, 528.)

This court in the case of Patterson v. Thompson, 24 Ark. 55, in construing this statute, held that the meaning of the first clause of section 7, copied above, was the same as if it read as follows: "The following actions shall be commenced in one year after the cause of action shall accrue, and not after: First, all special actions on the case, all actions for criminal conversation, assault and battery and false imprisonment."

Now, at common law, an injury arising from a tort, which was not a direct, but only a consequential, result of the tort, was redressed by an action of trespass on the case. This action is one of that class, and, if the law as declared in Patterson v. Thompson is still in force, it would be barred in one year.

The statute referred to above has never been expressly altered or repealed, but in 1868, after the decision in Thompson v. Patterson, the code of practice in civil cases was adopted, which abolished the distinctions between the different forms of actions, and provided that thereafter there should be "but one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be called a civil action." Sand. & H. Dig. §§ 5604, 5605.

Afterwards the legislature, in 1871, passed an act authorizing a digest of the statutes of the state to be made, which act provided that the digester should have authority 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." Gantt's Dig. § 5654.

Under the authority of this act a digester was appointed, and a digest of the statutes, known as "Gantt's Digest," was made and published in 1874. In that digest the language of the statute of limitations as it was given in the Revised Statutes, above referred to, was changed so as to read as follows:

"The following actions shall be commenced within three years after the cause of action shall accrue, and not after: First, all actions founded upon any contract or liability, express or implied, not in writing; second, all actions for trespass on lands or for libels; third, all actions for taking or injuring any goods or chattels.

"The following actions shall be commenced within one year after the cause of action shall accrue, and not after: 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." Gantt's Digest, §§ 4120, 4121.

A comparison of the law as stated in the Revised Statutes with that as stated in Gantt's Digest will show that the reference to "actions on the case" found in both sections six and seven of the Revised Statutes was omitted from Gantt's Digest, and that no reference whatever is made to such actions in the sections just quoted from that digest. Whether this statement of the law by the digester was founded on the belief that these portions of he statute were abrogated by the provision of the code which abolished forms of action, or upon some other ground, we do not know. What we do know is that, though the statutes of the state have been redigested twice since the digest of 1874, the subsequent digesters have copied the law on this point as stated in Gantt's Digest, and this court has in several cases inferentially...