Ott v. Great N. Ry. Co.

• Citation: 72 N.W. 833,70 Minn. 50
• Parties: OTT v GREAT NORTHERN RY. CO.
• Decision Date: 09 November 1897
• Court: Supreme Court of Minnesota (US)

70 Minn. 50

72 N.W. 833

OTTvGREAT NORTHERN RY. CO.

Supreme Court of Minnesota.

Nov. 9, 1897.

(Syllabus by the Court.)

1. The construction placed upon Gen. Laws 1895, c. 30, amendatory in terms of Gen. St. 1878, c. 66, § 8, subd. 1, in Brown v. Village of Heron Lake (Minn.) 69 N. W. 710, relating to the statute of limitations, adhered to.

2. The action for a battery which, under the provisions of section 8, subd. 1, supra, must be brought within two years, is an action founded upon an intentionally administered injury to the person,-such an injury as could be made the basis of a criminal prosecution. “Personal injury” actions, the result of negligence, are not within this statute; nor are they within the rule of ejusdem generis, as applied to an action for a battery.

Appeal from district court, Polk county; Frank Ives, Judge.

Mitchell, J., dissenting.

Action by Gottlieb Ott against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. Wellington and A. C. Wilkinson, for appellant.

H. Steenerson, for respondent.

COLLINS, J.

We had occasion in Brown v. Village of Heron Lake, 69 N. W. 710, to construe Gen. Laws 1895, c. 30, relating to the statute of limitations, and in terms amendatory of Gen. St. 1878, c. 66, § 8, subd. 1. We there held that the legislation of 1895 did not operate as a repeal or as an amendment of subdivision 5 of section 6 of said chapter 66. At that time we fully understood the difficulty and doubt surrounding the question, and that no construction could be placed upon the 1895 amendment which would be altogether free from criticism. For these reasons, we have permitted counsel for appellant in the case at bar to reargue the question at length, and with great zeal and ability have they insisted that the conclusion heretofore reached was erroneous, and the Brown Case should be overruled. We have also listened to an oral argument made by distinguished counsel employed in another case argued and submitted at the same time (Ackerman v. Railway Co., 72 N. W. 1134), involving the identical question. Certainly, the matter has been exhaustively presented, and we are quite confident that every phase has been discussed. But a majority of the court adhere to the construction given to the 1895 statute in the Brown Case. We do not contend that there can be no room for an honest difference of opinion, but we do claim that the cardinal rules are more closely followed in the manner in which we have heretofore construed the statute than they would be should we adopt the views of counsel for appellant.

We need not repeat or amplify the views expressed in the Brown Case, nor need we go over the ground covered in the arguments. But it has specially been urged that the case at bar, brought to recover for personal injuries alleged to have been caused by the wanton, reckless, and violent moving by defendant's servants of other cars down and upon a stock car in which plaintiff was lawfully riding, is in all respects within the rule ejusdem generis, as applied to an action for a battery, actions of that nature being expressly mentioned in section 8, subd. 1. Being an action, says counsel, for a personal injury, inflicted unintentionally, but negligently, it is of the same genus or class as an action for a battery, and therefore brought directly within the amendment. In fact, counsel goes further, for his claim amounts to the assertion that every action for a personal injury, when unintentional, but the result of carelessness or negligence, is an action for a battery; the wrong or injury inflicted being a “battery” at common law, within the definition given by Bouvier. It may be true that every personal injury committed through negligence, but unintentionally, is a “battery,” within the very broad common-law definition. But it does not follow that the word as used in section 8 is to be construed so as to include “personal injury” actions, or that it is to be defined according to the common law. Such a construction has never been suggested to our knowledge prior to this time. But the action for a battery, mentioned and brought within the two-years limitation, has admittedly been the action founded upon an intentionally administered injury to the person,-such an injury as could be made the basis of a criminal prosecution, and not that which resulted from the want of due care. Personal injury cases are not of the same genus or class as the action for a battery, as that action is provided for in section 8, and never have been. In no respect are they within the rule of ejusdem generis as applied to an action for a battery. As well now as before the amendment, all parts of the statute must be construed together, and every part given effect if possible. If we could, as counsel contends, distinguish between “injury to the person,” in section 5136, subd. 5, and “personal injury,” in section 5138, as amended, and hold that the latter means “bodily injury,” but the former does not, there would be much force in appellant's position. But we cannot so distinguish. Therefore, if we did not apply the rule of ejusdem generis, we would have one clause of the statute limiting the time of commencing such an action as this to six years, and another clause limiting it to two years, which would result in a radical repugnancy. But, by applying the rule ejusdem generis, we avoid that repugnancy,...