Geneva Cooperage Co. v. Brown

• Decision Date: 06 December 1906
• Citation: 98 S.W. 279,124 Ky. 16
• Parties: GENEVA COOPERAGE CO. ET AL. v. BROWN.
• Court: Kentucky Court of Appeals

98 S.W. 279

124 Ky. 16

GENEVA COOPERAGE CO. ET AL. v. BROWN.

Court of Appeals of Kentucky.

December 6, 1906

Appeal from Circuit Court, McLean County.

"To be officially reported."

Action by Reuben Brown against the Geneva Cooperage Company and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss.

Joe H Miller and Sweeney, Elles & Sweeney, for appellants.

L. P Tanner, J. W. Boston, and Geo. W. Hickman, for appellee.

CARROLL C.

To recover damages for injuries sustained on September 19, 1903 in operating a hoop cutter, the appellee on May 12, 1904 instituted an action against the Geneva Cooperage Company, alleging that it was a corporation created under the laws of the state of Ohio. The summons that issued on the petition was executed on W. J. Hazard, the chief agent and manager of the company. On September 19, 1904, Hazard filed an affidavit, denying that the Geneva Cooperage Company was a corporation, and averring that H. B. Gregory and J. M. Gregory were partners doing business under the partnership name of the Geneva Cooperage Company, and owned and operated the factory in which Brown was injured. On the same day, September 19, 1904, the plaintiff, now appellee, filed an amended petition against H. B. Gregory and J. M. Gregory, partners under the firm name of the Geneva Cooperage Company, and W. J. Hazard. Summons on this pleading was executed on the defendants on September 19, 1904. On November 7, 1904, Hazard filed a demurrer to the original and amended petitions, and H. B. Gregory and J. M. Gregory filed their joint answer, in one paragraph of which they averred that the injuries for which it was sought to recover damages accrued more than one year next before the filing of the amended petition and the commencement of the cause of action against them, and they relied on the statute of limitations in such cases made and provided as a bar to any recovery against them. A number of other motions were made and pleadings filed.

It being conceded that the Geneva Cooperage Company is a partnership composed of J. M. Gregory and H. B. Gregory, the appellants insist that their plea of limitation presented a complete bar to any recovery by appellee, and, if this contention is sustained, it will not be necessary to notice the other alleged errors relied on for reversal. The statute applicable to this question is section 2516 of the Kentucky Statutes of 1903, which provides: "An action for an injury to the person of the plaintiff, or of his wife, child, ward, apprentice, or servant, * * * shall be commenced within one year next after the cause of action accrued, and not thereafter." This court, in Wilson v. I. C. R. Co., 92 S.W. 572, 29 Ky. Law Rep. 148, considered the identical question here involved, and held that as Wilson was injured and died on the 6th of February, 1901, and the action to recover damages was not instituted until February 6, 1902, it was barred by the statute relied on here, as more than a year had expired between the day Wilson died and the institution of the action. Under this statute, the cause of action accrued immediately upon the infliction of the injury, and the statute of limitation commenced to run on September 19, 1903, and, in computing the time within which the action must be commenced, that day must be included.

In the construction of this statute, the word "year" means a calendar year. Ky. St. 1903, § 452. And a calendar year is ordinarily and in common acceptation considered to be 365 days. But if the calendar year is computed from a given day in a month, say September 19, 1903, and the time within which the action must be brought expires in one year, it would expire on the next day before the 19th of September of the following year, namely, on the 18th of September. And it happens that in thus computing the time in this particular case, and counting from September 19, 1903, to September 18, 1904, inclusive, the appellee had 366 days in which to institute this action. Ordinarily there would be included in this period 365 days, but as 1904 was a leap year, one day was added. So that, giving the statute the most favorable construction, and extending the meaning of "calendar year" to its extreme limit, the action is yet barred.

It will be observed that the language of this statute differs in some respects from that used in other sections of the chapter on limitation. It does not conclude that the action shall be commenced "within one year uext after the cause of action accrued," but the further words "and not thereafter" are added, so as to remove any possible doubt that might exist as to the meaning and intention of the Legislature.

Nor can there be any question that, under the rule of construction adopted by this court, the day on which the injury occurred must be included. This question has been frequently before the court in the consideration of other statutory provisions, and the construction has been uniform. To illustrate: In construing section 745 of the Civil Code of Practice, which provides that "an appeal shall not be granted except within two years next after the right to appeal has accrued," this court, in Board of Councilmen of Frankfort v. Farmers' Bank, 105 Ky. 811, 49 S.W. 811, reviewed fully the authorities, and held that an appeal filed on January 21, 1898, from a judgment rendered on January 21, 1896, was too late--quoting with approval the language of Judge Simpson in Chiles v. Smith's Heirs, 13 B. Mon. 460, in which it was announced that "the rule in regard to the computation of time seems to be that, when the computation is to be from an act done, the day in which the act is done must be included, and hence, since there is no fraction of a day, the act relates to the first moment of the day in which it was done. But when the computation is to be from the day itself, and not from the act done, then the day in which the act was done must be excluded." Here the computation must be from an act done, namely, the injury to the person, and consequently the day on which the injury was done must be included.

It is said, however, that the 18th day of September, 1904, fell on Sunday, and as the action could not have been instituted upon that day, the person entitled to bring the suit should be allowed the whole of the next day in which to institute his action; and in support of this proposition our attention is called to Owen v. Howard Ins. Co., 87 Ky. 571, 10 S.W. 119, which was a suit upon an insurance policy providing that no action upon it could be maintained unless commenced within 12...