Merritt v. Economy Department Store, 18653

• Decision Date: 14 July 1955
• Docket Number: No. 18653,18653
• Citation: 125 Ind.App. 560,128 N.E.2d 279
• Parties: , 61 A.L.R.2d 296 Willie MERRITT, Appellant, v. ECONOMY DEPARTMENT STORE, Inc., Appellee.
• Court: Indiana Appellate Court

Page 279

128 N.E.2d 279

125 Ind.App. 560, 61 A.L.R.2d 296

Willie MERRITT, Appellant, v. ECONOMY DEPARTMENT STORE, Inc., Appellee.

No. 18653.

Appellate Court of Indiana, In Banc.

July 14, 1955.

James D. Lopp, John D. Clouse, Evansville, for appellant.

Warren, Merrill & Combs, Evansville, for appellee.

PFAFF, Chief Judge.

This is an action brought by appellant to recover damages sustained by him on account of injuries suffered by his wife alleged to have been caused by the negligence of the appellee.

The appellee filed a demurrer to appellant's complaint on the ground that the complaint disclosed that the action was not commenced within two years after it accrued and that it was, therefore, barred by the statute of limitations.

The trial court sustained the demurrer and the appellant refused to plead further and suffered judgment to go against him.

The ruling on the demurrer constitutes the only assignment of error.

Appellee contends the applicable statute of limitations is Section 2-602 Burns' Indiana Stat., 1953 Supp., which provides in part, 'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued and not afterwards: First. For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years; Provided, That actions on account of injuries to personal property which occurred prior to the effective date of this amendatory act (March 7, 1951) shall be commenced within two (2) years from the effective date of this amendatory act * * *.'

Both appellant and appellee agree and it is unquestionably the law of this state that the right of action for loss of service is a property right.

An action for loss of service is for a property right and should be classed as an action "for injuries to property", rather than one "for injuries to person". Graf v. City Transit Co., Inc., 1942, 220 Ind. 249, 41 N.E.2d 941, 942.

Appellee contends that such right of action is 'personal property' as that term is used in the two-year statute of limitations. We believe this to be a correct interpretation of the law for the reason that in the court's opinion, Graf v. City Transit Co., Inc., supra, it was stated: 'Our legislature might have made all of these actions subject to the same limitation but it has not seen fit to do so.'

Ch. 301, § 1, p. 999, Acts of 1951, did make 'all of these actions subject to the same limitation', and in doing so amended the statute of limitations so that the six-year statute which had read, in part, 'for injuries to property', was amended to read, in part, 'for injuries to property other than personal property * * *.' Section 2-601 Burns' Indiana Stat., 1953 Supp., and the two-year statute reading, in part, 'for injuries to person or character * * *' was amended to read, in part, 'for injury to person or character, for injuries to personal property * * *'. As has already been pointed out, Section 2-602 Burns' 1953 Supp., establishes a limitation of two years 'for injuries to person'.

We must determine when the statute commences to run. In 54 C.J.S., Limitations of Actions, § 108, p. 9, it is stated:

'The general rule, as embodied in most statutes, is that, unless a statute specifically provides otherwise, the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, or when a person becomes liable to an action, and, according to the general rule which is applicable to any and all kinds of actions in a court, not until that time. It has been said that this rule is never questioned, but that the difficulty lies in determining when the cause of action is to be deemed as having accrued.'

To the same effect, 34 Am.Jur., p. 23, Sec. 13.

In a negligence action our Supreme Court, in Board of Commissioners of Wabash County v. Pearson, 1889, 120 Ind. 426, at page 428, 22 N.E. 134, 135, speaking through Judge Elliott, said:

'The appellee's cause of action did not accrue until he was injured, and, although the defendant's negligence runs back to 1871, the action is not barred by the statute of limitations. The two elements of the appellee's cause of action are the legal injury and the resulting damages. City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821. The statute did not begin to run until the right of action accrued, and this did not accrue until the two elements came into existence. There is, therefore, no force in the argument that the acts of negligence were committed in 1871, and that the statute then commenced to run, notwithstanding the fact that the appellee was not injured until 1884.'

See also: City of Ft. Wayne v. Hamilton, 1892, 132 Ind. 487, 495, 32 N.E. 324; 37 C.J. 813, Sec. 158; 54 C.J.S., Limitations of Actions,...