Preston v. Preston

• Decision Date: 17 February 1942
• Citation: 289 Ky. 552
• Court: United States State Supreme Court — District of Kentucky
• Parties: Preston v. Preston.

289 Ky. 552

Preston v. Preston.

Court of Appeals of Kentucky.

February 17, 1942.

1. Time. — Under statute providing that an action for personal injuries shall be commenced within one year next after cause of action accrues, if basis of action has been so completely consummated on day of the commission or omission of the act as to afford a right of action on that day, the day of the commission or omission must be included in the computation, but if the passing of the full day is a prequisite to the determination that the cause of action has accrued, the day of commission or omission may not be included (Ky. Stats., sec. 2516).

2. Time. — Cause of action for personal injuries sustained by plaintiff as result of allegedly being struck in the face by a shoe at hands of defendant, was barred by statute providing that an action for personal injuries shall be commenced within one year next after

the cause of action accrues, where the act occurred on October 4, 1937, and petition was filed on October 4, 1938 (Ky. Stats., sec. 2516).

Appeal from Johnson Circuit Court.

Wheeler & Wheeler for appellant.

W.J. Ward and Grover C. Allen for appellee.

Before J.F. Bailey, Judge.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER.

Reversing.

The cause of action was for damages growing out of injuries allegedly sustained by appellee as a result of being struck in the face by a shoe at the hands of appellant on the 4th day of October, 1937. The petition was filed on the 4th day of October, 1938.

Section 2516, Kentucky Statutes, provides that an action for personal injuries shall be commenced within one year next after the cause of action accrues. When the computation of time is to be made from the act, the day on which the act was done must be included in the count, but, when the computation is made from the day itself, it must be excluded from the computation. Salisbury v. Commonwealth, 254 Ky. 77, 70 S.W. (2d) 987, and cases therein cited. In other words, if the basis of the action has been so completely consummated on the day of its commission or omission as to afford a right of action on that day, the day of its commission or omission must be included in the count; whereas, it may not be included in the count if the passing of the full day is a prerequisite to the determination that the cause of action has accrued.

Immediately after appellant struck appellee her right of action accrued, wherefore, she did not have to wait until the following day to bring...