Fannin v. Lewis

• Decision Date: 21 November 1952
• Parties: FANNIN v. LEWIS.
• Court: United States State Supreme Court — District of Kentucky

Page 479

254 S.W.2d 479

FANNIN v. LEWIS.

Court of Appeals of Kentucky.

Nov. 21, 1952.

Rehearing Denied Feb. 20, 1953.

A. W. Mann, W. B. Arthur, Ashland, for appellant.

Virgil H. Redwine, Sandy Hook, H. Rupert Wilhoit, Grayson, for appellee.

DUNCAN, Justice.

For personal injuries received in an automobile accident while riding as a passenger in appellant's car, appellee recovered a judgment for $5,000. A companion case, involving a judgment in favor of another passenger who received injuries in the same accident, was affirmed by this court in Fannin v. Lewis, Ky., 243 S.W.2d 60. The accident occurred on June 13, 1948, and suit was filed in the court below on June 13, 1949. Among other defenses, appellant relied upon the one-year statute of limitations as a bar to recovery. The conclusions which we have reached make it necessary to discuss only one of the grounds urged for reversal.

The courts of this state are firmly committed to the rule that when the computation of time is to be made from a particular day, that day is to be excluded, but when time is computed from an act done, the day on which the act occurs is to be included in the computation. KRS 413.140 provides that actions for injuries to the person of the plaintiff shall be commenced within one year after the cause of action accrued. Computation is made from the event of the accrual of the cause of action, rather than from the day upon which it accrued. Without a single exception since Chiles v. Smith's Heirs, 52 Ky. 460, 13 B.Mon. 460, decided in 1852, this court has applied this rule of computation in construing statutes of limitation. Chiles v. Smith's Heirs, supra; Lebus v. Wayne-Ratterman Co., 14 Ky.Law Rep. 794, 21 S.W. 652; Zeman v. Steinburg, 21 Ky.Law. Rep. 586, 52 S.W. 821; Zeman v. Steinburg, 21 Ky.Law Rep. 1152, 54 S.W. 178; Geneva Cooperage Co. v. Brown, 124 Ky. 16, 98 S.W. 279; Preston v. Preston, 289 Ky. 552, 159 S.W.2d 414; Charles v. Big Jim Coal Co., 314 Ky. 778, 237 S.W.2d 68.

Appellee insists that the computation rule in Kentucky represents the minority view, is unsound and ought to be overruled. However, as pointed out in Pinson v. Bentley, 293 Ky. 490, 169 S.W.2d 305, the rule has become so firmly embodied in our jurisprudence as a guide for interpreting statutory and code provisions prescribing time limitations that the Legislature, rather than this court, should be called upon to change it.

Appellee points out that this accident occurred on Sunday, June 13, 1948; that June 12, 1949, was a Sunday; and it is contended that one or the other of the Sundays should be excluded in the computation. The rule is also firmly established in this state that in the computation of time, if the time within which an act may be done exceeds a week, Sundays are to be included, but if less than a week, Sundays are excluded. Geneva Cooperage Co. v. Brown, supra; Lowry v. Stotts, 138 Ky 251, 127 S.W. 789; Shaver v. Sparks, 277 Ky. 581, 126 S.W.2d 1110.

Finally, it is insisted that the facts in this case bring appellee within the provisions of KRS 413.260(1), which provides:

'If the doing of an act necessary to save any right or benefit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer or his refusal to act, the time covered by the injunction, restraint, vacancy, absence or refusal to act shall not be counted in the application of any statute of limitations.'

The county attorney of Elliott County, who is one of the attorneys for appellee, testified that on June 9, 10 and 11 he went to the office of the circuit clerk for...