Kelly v. Independent Pub. Co.

• Decision Date: 02 March 1912
• Citation: 122 P. 735,45 Mont. 127
• Parties: KELLY v. INDEPENDENT PUB. CO.
• Court: Montana Supreme Court

122 P. 735

45 Mont. 127

KELLY v. INDEPENDENT PUB. CO.

Supreme Court of Montana

March 2, 1912

Appeal from District Court, Silver Bow, County; John B. McClernan Judge. Action by Jenny Kelly, administratrix, against the Independent Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. C Day and Walter S. T. Brown, both of Helena, for appellant.

I. G Denny and J. O. Davies, both of Butte, for respondent.

BRANTLY C.J.

Action for damages for the publication of a libel. In the court below, the plaintiff had verdict and judgment. The defendant has appealed from the judgment and an order denying its motion for a new trial. The cause of action alleged is the publication by defendant, in the Helena Daily Independent, on the morning of February 21, 1907, of and concerning the plaintiff the following article:

"Mother Accused by tier Children.

"Mrs. F. E. Miller of Butte, is arrested on charge of assault, at the instance of Otto Schoenfeld, executive officer of the state bureau of child and animal protection, who was hurriedly summoned to Butte Tuesday night by W. H. Orr, of the Silver Bow County Humane Society. Mrs. F. E. Miller was arrested and placed in the county jail this afternoon on the charge of assault upon her fifteen year old daughter. The charge is but nominal and behind is a story of horrible brutality and a peculiar condition of domestic affairs, according to the three children of the woman. It is alleged by the older daughter who goes by the name of Ruth Harris, the latter the name of the woman's second husband, that the younger daughter, Helen, eleven years of age, has been compelled, at the command of the mother, to submit to unspeakable indignities forced upon her by men who have been repeatedly invited to their home at 1121 South Wyoming street, where the most indecent orgies are alleged to have been continued through the night.

"Threatened Their Lives.

"The mother, Mrs. Miller, is said to be a confirmed drunkard. It is alleged that on several occasions she has thrown a huge butcher knife at the children and has threatened to kill them if they were taken from her. The two girls were taken .from school this afternoon by Mr. Schoenfeld, and they have been placed temporarily in the Paul Clark Home. The matter will be taken up before Judge Donlan to-morrow morning and the girls will probably be sent to the drphans' Home in Helena. There is also a boy twelve years of age, and what disposition will be made of him has not yet been decided."

Among other defenses, the defendant pleaded the statute of limitations. Plaintiff interposed a denial. At the commencement of the trial, the defendant objected to the introduction of evidence, on the ground that, it appearing from the complaint that the publication was made on February 21, 1907. and that the complaint was not filed until February 23, 1909, the action was barred by the provision of the statute. The objection was overruled. At the close of the evidence, the defendant requested the court to direct a verdict in its favor. The request was denied. The contentions made in this court are based upon these two rulings. Some technical questions arising upon the form of the plea of the statute and the reply thereto are argued in the brief. We shall not notice these, because they do not affect the merits of these appeals.

It was admitted in the district court, and also at the argument in tiffs court, that the article in question was published on the morning of February 21, 1907, and that this action was commenced on February 23, 1909. February 21, 1909, fell on Sunday, a holiday. The following day was also a holiday. The position of counsel for defendant is that in computing the two-year period of limitation prescribed by the statute for actions for libel (Rev. Codes. § 6448) the day of publication must be included, because the right of action accrues on that day. Hence that the district court should have sustained the objection and held the action barred. If counsel's assumption is correct, their conclusion is also; for if the two-year period be computed, either in calendar years, or in years of 365 days each, excluding the added day of the year 1908, a leap year (Rev. Codes, § 2029), by the rule relied on by counsel, the limitation expired at midnight on February 20, 1909. From this point of view, of course, the two holidays following are entirely outside of the limitation period and need not be considered. The question, therefore, is, first, whether in computing the limitation period the first day is to be excluded; and, if so, second, whether the two holidays are to be excluded also.

For most purposes, the law regards the day as an individual unit. It is only when it becomes necessary to inquire into the order of sequence of two or more eyelets occurring on the same day, for the purpose of determining a question of priority of right, or when the computation includes only one day or less, that departure from this rule is permitted. Harmon v. Comstock Horse & Cattle Co., 9 Mont. 243, 23 P. 470; Rev. Codes, § 8071. In Lester v. Garland, 15 Ves. Jr. 248, it was said: "Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point, so that an act done in the compass of it is no more referable to any one than to any other portion of it; but the act and day are coextensive, and therefore the act cannot be passed until the day is passed." There is some confusion in the decisions of the courts upon the subject. In the case cited, the conclusion was reached that no general rule can be laid down, because cases would occur the reason of which would require exceptions to be made. The result of this decision, however, was that earlier cases (Norris v. Gawtry, Hob. 139; Bellasis v. Hester, I Ld. Raym. 280; Rex v. Adderley, 2 Dough 463; Castle v. Burditt, 3 T. E. 623, 100 Eng. Rep. Reprint, 768), which held that the computation was to be made from the act done, and that the day on which the act was done should be ineluded, were overruled. The rule applied in the cases last mentioned has been adopted by some of the courts in this country, as is shown by the following cases: Geneva Cooperage Co. v. Brown, 124 Ky. 16, 96 S.W. 279, 124 Am. St. Rep. 388; Aultman & Taylor Co. v. Syme, 163 N.Y. 54, 57 N.E. 168, 79 Am. St. Rep. 565; Peterson v. Georgia R. R. & Banking Co., 97 Ga. 798, 25 S.E. 370; Shinn v. Tucker, 33 Ark. 421. This was formerly the rule in Massachusetts; the court basing its decision on Norris v. Cawtry, supra (Presbrey v. Williams, 15 Mass. 193); but in the case of Seward v. Hayden, 150 Mass. 158, 22 N.E. 629, 5 L. R. A. 844, 15 Am. St. Rep. 183, Presbrey v. Williams was overruled. The court said: "But in computing time under statutes and contracts the law disregards fractions of a day, unless, on account of the subjectmatter, or for other important reasons, justice requires that they should be regarded. This rule is universally held applicable to computations under the statute of limitations." The current of authority supports the rule thus stated. Owen v. Slatter, 26 Ala. 547. 62 Am. Dec. 745; Blackman v. Nearing, 43 Conn. 56, 21 Am. Rep. 634; McCulloch v. Hopper, 47 N. J. Law, 189, 54 Am. Rep. 146; Perkins v. Jennings, 27 Wash. 145, 67 P. 590; Warren v. Slade, 23 Mich. 1, 9 Am. Rep. 70; Grant v. Paddock, 30 Or. 312, 47 P. 712; Menges v. Frick, 73 Pa. 137, 13 Am. Rep. 731; Pugh v. Rent, 107 Ill. 440; Cowan v. Donaldson, 95 Tenn, 322, 32 S.W. 457; Spencer v. Haug, 45 Minn. 231, 47 N.W. 794; Nobelf v. Minnesota Iron Co., 102 Minn. 89, 112 N.W. $80. A collection of cases will he retold in a note appended to the last case cited, in 12 Ann. Cas. 56.

Most of the foregoing cases are founded upon contract. But, if the day is to be regarded as a unit, there is no reason why the rule, as applied to actions ex contratu, should not apply to actions ex delicto also; otherwise there is a lack of uniformity in its application, and the resultq is that in the latter class of eases the period of limitation is shortened by the portion of the day l which has expired before the doing of the wrong out of which the cause of action arises. There is no sound reason why the distinction should be made. The statute provides: "The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded." Rev. Codes, § 8067. It was pointed out in Perkins v. Jennings and Grant v Paddock, supra, that the purpose of this provision was to establish a general rule for the computation of time, in order that confusion may be avoided and harmony prevail. We think this is the correct view, because it furnishes a certain guide for the computation of time as applied to the statute of limitations in all cases, and also as applied to matters of procedure in the courts. The words "any act provided by law," as used in the statute, do not refer to acts which the law provides shall be done, lint to acts which may be done within a specified time. The section has always been held by this court to apply to the time within which an appeal may be taken, to the time within which a notice of intention to move for a new trial may be given, or to the time within which any other motion or proceeding may be had in the course of litigation in courts (Jackway v. Hymer, 42 Mort. 169, 111 P. 720, and cases cited); and yet the doing of any of these things is not compulsary, because required by law to be done, but are to be done at the option of the parties. If the provision has no application to the time within which an action must be brought, then, by the same rule, it has no application to matters of procedure, and must be...