Merritt v. Cravens

• Decision Date: 27 January 1916
• Citation: 168 Ky. 155,181 S.W. 970
• Parties: MERRITT v. CRAVENS. [a1]
• Court: Kentucky Court of Appeals

181 S.W. 970

168 Ky. 155

MERRITT v. CRAVENS. ^[a1]

Court of Appeals of Kentucky.

January 27, 1916

Appeal from Circuit Court, Christian County.

Suit by B. P. Cravens against George H. Merritt, Jr. From a judgment for plaintiff, defendant appeals. Reversed with directions.

C. H Bush, of Hopkinsville, and Hazelrigg & Hazelrigg, of Frankfort, for appellant.

Trimble & Bell, Smith & Slaughter, and J. C. Duffy, all of Hopkinsville, for appellee.

THOMAS J.

In February, 1900, the appellee, B. P. Cravens and his wife Bertha Cravens, were married. They lived together as husband and wife until the 23d day of December, 1913, when, for the reasons hereinafter stated, the appellee claims to have left his wife, and within a few days thereafter filed suit against her for divorce in the circuit court of Christian county, and on February 22 1914, a judgment granting him an absolute divorce from his wife was rendered by that court. About the time of the filing of the divorce suit, appellee filed this suit against appellant, Geo. H. Merritt, Jr., seeking to recover from the defendant the sum of $25,000 as damages because, as he claimed, the appellant had alienated the affections of his wife. During the marriage there was born to appellee and his wife six children, five of whom are living, the oldest being 13 years of age and the youngest 3 years of age, or rather this was their ages at the time of the trial of this case. The appellee seems to have been somewhat of a roving character and had been living in Hopkinsville, Christian county, Ky. the last time for something like three or four years just previous to the filing of this suit. His avocation seems to have been that of a carpenter around a coal mine, and he sometimes worked as a section hand on the railroad. For some considerable time previous to March 3, 1913, the appellee had been occupying as tenant a house belonging to the appellant, which was used by himself and family as a residence. His health had become greatly impaired, and on account of his resulting physical decline, his mind became more or less impaired and on the last date mentioned, he was adjudged to be a person of unsound mind and was placed as an inmate in the Western Kentucky Lunatic Asylum located at Hopkinsville, where he remained until July 6th following that date. On this day he returned to his home and resumed his position as a member of the family and as the head thereof, which position he continued to occupy until he separated from his wife. Upon the trial of the case there was a verdict and judgment in favor of the appellee for the sum of $6,000 against appellant, and, complaining of that judgment, he prosecutes this appeal. At the time of the trial of the case, the divorce hereinbefore mentioned had been granted, and on behalf of the appellee his divorced wife was permitted to testify over the objections and exceptions of appellant. There was a demurrer to the petition, which was overruled, and the exceptions taken. Several grounds for a new trial were relied upon, but the chief ones urged before us are: (1) Error of the court in overruling the demurrer to the petition; (2) error of the court in permitting the wife of appellee to testify upon the trial; and (3) error of the court in improperly instructing the jury and in refusing instructions offered by appellant.

Considering these grounds in the order mentioned, we may state that the objection taken to the petition by the demurrer is that it shows on its face that the cause of action is barred by the statute of limitations. This comes about from the evident fact that there was a typographical error made in drafting the petition so that it was made to state that the acts complained of occurred in the year 1910 instead of in the year 1913. It is insisted that this character of action must be brought within one year from the time it accrued, as is provided by section 2516 of the Kentucky Statutes, and it is urged that, as the petition showed on its face that more than one year had expired from the committing of the acts by appellant, of which complaint is made in the petition, the demurrer should have been sustained. There is some authority for this position, but a much greater number of cases from this court, as well as the more recent ones, hold that the statute of limitations is a personal plea, which cannot only be waived by the defendant by a failure to plead it, but that before suit in any character of cases, the statutory bar may be prolonged by some act of the party to be charged; and it is familiar law that a cause of action which had already become barred may furnish a valid consideration for a new promise. These rules with reference to the statute of limitations would seem to indicate that the law views the right of a party to rely upon the statute, not for the purpose of prohibiting a recovery because of any special regard for the rights of the party, but rather for the purpose of encouraging a rule of repose by which parties may have their causes tried and investigated at a time when the testimony, either by witnesses or otherwise, may be available, and before the witnesses should die or the evidence should otherwise become unobtainable. Of the cases holding that the statute should be relied upon by answer, we append the following from this court: Chiles v. Drake, 2 Metc. 146, 74 Am.Dec. 406; Rankin v. Turney, 2 Bush, 555; Board v. Jolly, 5 Bush, 86; Stillwell v. Leavy, 84 Ky. 399, 1 S.W. 590; Mullins et al. v. Mullins, 120 Ky. 643, 87 S.W. 764, 27 Ky. Law Rep. 1048; Swineboard v. Wood, 123 Ky. 664, 97 S.W. 25, 30 Ky. Law Rep. 946; Yeager v. Bank of Kentucky, 125 Ky. 183, 100 S.W. 848, 30 Ky. Law Rep. 1287; Brasher's Heirs et al. v. Brasher, 144 Ky. 451, 139 S.W. 738; Baker et al. v. Begley, 155 Ky. 234, 159 S.W. 691; Hackett v. State Bank & Trust Co., 155 Ky. 392, 159 S.W. 952; Davie, Ex'r, v. City of Louisville, 159 Ky. 252, 166 S.W. 969; City of Louisville v. O'Donaghue, 157 Ky. 243, 162 S.W. 1110.

As stated, the law has no cherished desire to force the barring of an action by the statute, and if the defendant does not see proper to rely upon it, it is no concern of the law, and it is equally disinterested as to whether the plaintiff succeeds upon a cause of action that is barred, or one that is not barred, leaving the matter entirely with the party to be benefited by the statute. The statute is no bar to the merits, but is only a privilege extended to a litigant whereby he may, if he chooses, close the door of the court on his tardy adversary. We are therefore of the opinion that the better practice is that those who seek to take advantage of the statute must plead it.

But, if we were mistaken in this, still the error relied upon by the appellant could not avail him in this case because the undisputed facts show that the cause of action, if any, which the appellee has, arose from acts committed in 1913, within less than a year next before the filing of the suit. It furthermore appears that long before the trial of this case the appellant gave his deposition concerning the matter, and he was fully apprised of the year in which the action was laid, and at the time of the trial was not in the least surprised when it was shown by the testimony that the acts with which he was charged occurred in 1913. Section 129 of the Civil Code of Practice is as follows:

"129. [ Variance When Material--Amendment.] No variance between pleadings and proof is material, which does not mislead a party, to his prejudice, in maintaining his action or defense upon the merits. A party who claims to have been so misled must show that fact to the satisfaction of the court; and, thereupon, the court may order the pleading to be amended, upon such terms as may be just."

The purpose of the enactment of this section was to meet just such conditions as that with which we are now dealing. Manifestly, the variance between the date as alleged and as proven could have no possible effect upon the case unless one of them would establish a bar to the cause of action. For illustrations, suppose the limitation in this action was five years, and the allegation had been, as it is, that the acts occurred in 1910, when the proof showed that they occurred in 1913. This would produce no fatal variance unless the complaining party could show that he was in some manner misled by reason of the variance to his prejudice. It is not pretended in this case that the appellant was in any manner misled, or that the typographical error in the writing of the year in the petition in any manner prejudiced his substantial rights. We, therefore, conclude that the variance was not material and that it furnishes no ground of complaint by appellant. Gaines v. Deposit Bank, 39 S.W. 438, 19 Ky. Law Rep. 171; Illinois Cent. R. Co. v. Smith, 133 Ky. 732, 118 S.W. 933; Central Coal Co. v. Thompson, 102 S.W. 272, 31 Ky. Law Rep. 276; Continental Coal Co. v. Hunt, 90 S.W. 1056, 28 Ky. Law Rep. 1010.

Before considering the second objection above to the judgment, it might be proper to notice another point made by appellant, which is, that after the returning of the verdict, he entered a motion in arrest of judgment, which was overruled. Strictly speaking, this motion is a part only of the criminal practice, but considering it as a motion for a judgment non obstante veredicto, the observations which we have made with reference to the supposed variance between the allegations and the proof will apply here, and for the reason stated there was no error in failing to sustain that motion.

Serious complaint is made of the action of the court in permitting the divorced wife of the appellee to testify, as it is claimed that this violates the provision of 606 of the Civil Code, but numerous decisions from this court do...