Hyde v. Nelson

• Decision Date: 23 March 1921
• Citation: 229 S.W. 200,287 Mo. 130
• Parties: BENNET CLARK HYDE, Appellant, v. IDA H. NELSON et al
• Court: Missouri Supreme Court

229 S.W. 200

287 Mo. 130

BENNET CLARK HYDE, Appellant, v. IDA H. NELSON et al

Supreme Court of Missouri, Second Division

March 23, 1921

Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.

Affirmed.

H. S Julian for appellant.

(1) Under Sec. 5438, R. S. 1909, appellant's cause of action survived the death of William R. Nelson and the suit was properly brought against Mrs. Nelson and Mrs. Kirkwood individually and as trustees, as being the legal representatives of William R. Nelson. Knole v Paxton, 268 Mo. 463; Shippey v. Kansas City, 254 Mo. 23; Winter v. Van Blarcom, 258 Mo. 419; Taylor v. Met. Ry. Co., 256 Mo. 218; Ryan v. Ortgier, 201 Mo.App. 1. (2) The court erred in holding that the Statute of Limitations began to run from May 11, 1910, the time of the publication of the article, instead of from April 9, 1917, at the time he was discharged under the indictments and released from imprisonment by his bondsmen. State v. Hyde, 234 Mo. 259; 6 Mod. 231, 339; Republica v. Jailor, 2 Yates (Penn.) 265; Comm. v. Brickett, 8 Pick. (Mass.) 140; Wharton's Crim. Law and Proc. sec. 62; Devine v. State, 5 Sneed (Tenn.) 626; State v. Maken, 3 Harr. (Del.) 569; Ponder v. Cox, 26 Ga. 491; Matilda v. Crenshaw, 12 Tenn. (4 Yerger) 299; Price v. Slaughter, 1 Cinn. Rep. 429; Taylor v. Taintor, 83 U.S. (16 Wall.) 371; Pickett v. Rush, 4 Adol. and Ell. 912; Chandler v. Villett, 2 Saunders, 117; In re James, 18 F. 853; United States v. Stevens, 19 F. 101; Lassater v. Wait, 67 S.W. 518; Wood on Lim. (4 Ed.) sec. 241; 19 Am. & Eng. Ency. Law (2 Ed.), 237; 25 Cyc. 1264; State v. Calhoun, 50 Kan. 523; 18 L. R. A. 838.

Watson, Gage & Ess for respondents.

(1) The alleged cause of action asserted in plaintiff's petition was barred by the Statute of Limitation for the reason that the appellant was not imprisoned within the meaning of Sec. 1894, R. S. 1909. City of Warrensburg v. Simpson, 22 Mo.App. 699; Furlong v. Association, 189 S.W. 385; 5 Cyc. 10; 21 Cyc. 1742; 17 C. J. 441; Sec. 4391, R. S. 1909; Bird v. Jones, 7 Q. B. 742; Black's Law Dictionary; Ex parte Jones, 41 Cal. 209; In re Morse, 117 F. 763; People ex rel v. Grant, 111 N.Y. 587; Miller v. Strabbing, 92 Mich. 302; Klasner v. Klasner, 170 P. 745; 2 Kent. Com. 26; Rich v. Bailey, 123 Ky. 897, 97 S.W. 747; Wales v. Whitney, 114 U.S. 570; Sibray v. United States, 189 F. 404, 107 C. C. A. 483; In re Dykes, 13 Okla. 339, 74 P. 506; Piggett v. Rush, 4 Adolf & Ell. 912; Matilda v. Cranshaw, 4 Yerg. (Tenn.) 299; Ramsey v. Colbaugh, 13 Iowa 164; Garrett v. Georgia, 102 Ga. 558; Wilkes v. Slaughter, 10 N.C. 211; Spring v. Dahlman 34 Neb. 692; Alexander Wass v. Bartlett, 10 Gray (Mass.) 490; State v. Calhoun, 50 Kan. 523, 22 P. 38; L. R. A. 838; Lawson v. Buzines, 3 Harr. (Del.) 416; Johnson v. Bouton, 35 Neb. 398; Floyd v. State, 12 Ark. 43; 16 Am. & Eng. Ency. Law (2 Ed.), 49. Ex parte Cain, 20 Okla. 125, 93 P. 176; Secs. 2478, 2442, 2444 to 2448, 2456, 2448, 2467, 2468, 2471, 2472, 2474, 2477, 2483 and 1891, R. S. 1909. (2) Inasmuch as William R. Nelson died in April, 1915, and no suit had theretofore been instituted against his administrators or executors, no cause of action survives in favor of appellant against respondents, as trustees of his estate. Secs. 106, 5438, R. S. 1909.

OPINION

HIGBEE, P. J.

This is an appeal from the judgment of the circuit court sustaining a demurrer to plaintiff's amended petition. Plaintiff filed his petition on April 8, 1919, and on June 10, 1919, filed an amended petition. In substance it avers that William R. Nelson was owner and publisher of the "Kansas City Star," a daily newspaper; that Stout was managing editor and Seested was general manager of said newspaper; that Nelson died in April, 1915, testate, devising his property to his wife, Ida H. Nelson, and to his daughter, Laura Nelson Kirkwood; that his will was probated; that plaintiff is a physician and surgeon in Kansas City; that said William R. Nelson and the defendant Stout and Seested, wickedly and maliciously intending to injure plaintiff and to cause it to be suspected that he was guilty of murdering Thomas H. Swope and Chrisman Swope by poisoning them and that he tried to murder the family of Mrs. L. O. Swope by inoculating them with the germs of typhoid fever so that they would die, did, on or about May 11, 1910, publish in the "Kansas City Star" the following false, scandalous, malicious and defamatory article, to-wit:

"They said, now, Dr. Twyman, you may talk all you please, you are not going to convince us at all for we believe we know that Dr. Hyde (meaning this plaintiff) is responsible for the death of Colonel Swope, Chrisman Swope, and the inoculation of this family with typhoid," meaning thereby, etc., that on March 5, 1910, the grand jury of Jackson County returned an indictment charging plaintiff with the murder of Thomas H. Swope, under which he was arrested; that he was admitted to bail March 8, 1910, plaintiff, as principal, and certain sureties signing a bond in the sum of $ 50,000 under which he remained at large until April 27, 1910, when he was remanded to jail by the court; that on May 16, 1910, he was found guilty of murder in the first degree by a jury and sentenced to imprisonment for life in the penitentiary, which judgment was reversed April 11, 1911, and the cause was remanded for new trial; that he was admitted to bail on April 26, 1911, on a writ of habeas corpus issued by the circuit court and executed a bond for his appearance signed by himself as principal and certain others as sureties, and that he was continuously under said bond until April 9, 1917, when all indictments pending against him were dismissed. Plaintiff laid his damages, actual and punitive, at $ 2,500,000.

The defendant demurred, because (1) the petition does not state facts sufficient to constitute a cause of action: (2) the cause of action abated on the death of William R. Nelson: (3) no suit has been brought against the administrator of William R. Nelson, deceased. (4) the action is barred by the Statute of Limitations and plaintiff was not imprisoned within the meaning of Section 1894, Revised Statutes 1909 (now Sec. 1323, R. S. 1919). The demurrer was sustained. Plaintiff declining to plead over, the court dismissed the action and rendered judgment against him for costs.

I. The learned counsel for appellant, in framing the amended petition, obeyed the mandate of our statute requiring the petition to contain "a plain and concise statement of the facts constituting a cause of action." The libel was published on May 11, 1910. The action was brought April 8, 1919, nearly nine years after the publication and was therefore barred by the two-year statute unless the facts stated in the petition show that the plaintiff was under the disability of imprisonment on a criminal charge until April 9, 1917. Section 1323 reads:

"If any person entitled to bring an action in this article specified, at the time the cause of action accrued be either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, or a married woman, such persons shall be at liberty to bring such actions within the respective times in this article limited after such disability is removed."

Appellant urges that he was under duress and in the custody of the law and was imprisoned on a criminal charge while out on bail within the meaning of this section, and was entitled to bring his action within two years after the criminal proceedings were dismissed on April 9, 1917. To illustrate his plight appellant, in substance, says he would not have been able to enforce any of his rights that were strongly resisted against contesting litigants in a court of justice. With eight indictments still pending and the hangman's noose dangling about his ears, he would have been impotent to assert his rights. This moving, graphic picture is not suggestive of the disability of duress, but rather of the expediency of a change of venue.

The reason for the enactment of the statute quoted is obvious. One actually imprisoned or physically restrained is deprived of freedom of action. He cannot look after his affairs. It would be a denial of the equal protection of the law if one so restrained were not exempted from the operation of the general Statute of Limitations. The reason of the law is the life of the law.

There can be no doubt that the word imprisonment is used in this section in its plain, ordinary meaning. Imprisonment is, "The act of putting or confining a man in prison; the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion." [21 Cyc. 1742.]

Appellant relies upon remarks made by Judge Ferriss in State v. Hyde, 234 Mo. 200, 136 S.W. 316, Dr. Hyde, as stated in the petition, at the time of his indictment had given a continuing bond in the sum of $ 50,000, had gone to trial at the next term, and had given no indication of any purpose to abscond. At the close of the evidence for the State, the court, of its own motion, revoked his bail bond and committed him to jail on the ground "that the evidence so far given amounts to a presumption that under the law deprives defendant of the right to go on bond." This action was held to be an abuse of the court's discretion and prejudicial to the interests of the defendant. To illustrate the lack of need for the court's action, Judge Ferriss, in speaking of the condition of the bond, at page 258, said:

"In a sense, the effect of the bail bond was to place the defendant in the custody of his bondsmen, but he was in custodia legis. 'A man's bail are looked upon as his gaolers of his own choosing,...