Faulkner v. Huie

• Decision Date: 22 February 1943
• Docket Number: 4-6994
• Citation: Faulkner v. Huie, 168 S.W.2d 839, 205 Ark. 332 (Ark. 1943)
• Parties: FAULKNER v. HUIE
• Court: Arkansas Supreme Court

168 S.W.2d 839

205 Ark. 332

FAULKNER v. HUIE

4-6994

Supreme Court of Arkansas

February 22, 1943

Appeal from Pulaski Circuit Court, Second Division; E. R. Parham Special Judge; affirmed.

Judgment affirmed.

Raymond Jones, for appellant.

Buzbee Harrison & Wright, for appellee.

OPINION

CARTER, J.

Faulkner was injured in an automobile accident on October 9, 1935. Huie was driving the car and the car was turned over. The accident happened in Missouri. Faulkner brought suit on November 8, 1941, more than six years after the date of the accident. He alleged he was injured as a result of negligence on the part of Huie.

Huie demurred to the complaint on the ground that it appeared from the face of the complaint that the cause of action was barred by the three-year statute of limitations. The demurrer was sustained by the trial court, the complaint was dismissed and Faulkner has appealed.

The complaint alleged that as a result of the injuries received in the automobile accident Faulkner has lost his hearing "and that it was not until December 13, 1938, that he discovered that the injuries sustained by him in said automobile accident" were resulting in the loss of his hearing. "It was not until the last mentioned date that he knew, or had any reason to suspect, that there was any connection between the sustaining of said injuries in said automobile accident by him, and the loss of hearing in his left ear; that if he had had any such information before December 13, 1938, he could and would have sooner instituted his suit." He also alleged he had consulted many doctors, during the time between the accident and the suit, to ascertain the cause of his growing deafness and to have it treated. The suit was instituted within three years after the date on which the plaintiff alleged that he first discovered that the loss of his hearing was a result of the injuries sustained in the automobile accident.

Faulkner insists here that "In actions at law, the statute of limitations cannot be taken advantage of by demurrer, unless the complaint, on its face, shows that a sufficient time had elapsed to bar the action, and the nonexistence of any ground of avoidance." As we understand it, the contention is that although the ground of avoidance stated in the complaint may not be sufficient, nevertheless, this question cannot be passed upon on a demurrer to the complaint. He contends that if the complaint alleges any ground of avoidance, whether the same be sufficient or not to toll the statute of limitations, then the statute of limitations cannot be taken advantage of by demurrer to the complaint.

Faulkner's second contention is that his complaint did set up sufficient grounds for the avoidance of the statute of limitations.

Neither contention is sound.

It is true that, in actions at law, the statute of limitations may not be taken advantage of on a demurrer to the complaint where the face of the complaint does show the existence of valid grounds for avoiding the running of the statute. The mere allegation of certain alleged grounds of avoidance will not, however, prevent the court from examining, on a demurrer, whether the grounds stated are sufficient or not.

In the case of Smith v. Missouri Pacific Railroad, 175 Ark. 626, 1 S.W.2d 48, this court said: "This court has frequently held, and we now hold again, that, where the complaint shows on its face that it is barred by the statute of limitations, and no ground of avoidance is shown, the question may be raised by demurrer."

Note that the court said "no ground of avoidance is shown" --it did not use the word "alleged." There is no reason why the court should not, on demurrer to the complaint, determine whether the alleged ground of avoidance is really a ground--whether it is sufficient as a matter of law to toll the running of the statute.

In the case at bar the ground of avoidance alleged in the complaint was not sufficient as a matter of law. On the demurrer, of course, the facts alleged are taken as true and the plaintiff is entitled to the benefit of all the inferences which can be reasonably drawn therefrom.

In tort actions, the statute of limitations usually begins to run when the tort is complete. As stated in IV Restatement of Torts, § 899, c: "A battery or cause of action for negligently harming a person or a thing is complete upon physical contact even though there is no observable damage at the time of contact."

In the case of Field v. Gazette Publishing Company, 187 Ark. 253 (1933), 59 S.W.2d 19, the plaintiff claimed that he had not been furnished a safe place in which to work and that as a result thereof he contracted lead poisoning. The evidence indicated that he had contracted this disease more than three years prior to the bringing of the suit. At that time he had developed small sores. Within three years of the bringing of the suit, the effects of the...