Ridings v. Hamilton Sav. Bank

• Decision Date: 02 March 1920
• Docket Number: No. 20208.,20208.
• Citation: 219 S.W. 585
• Parties: BLASER v. OSAGE RIVER GRAVEL CO.
• Court: Missouri Supreme Court

219 S.W. 585

BLASER v. OSAGE RIVER GRAVEL CO.

No. 20208.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Action by A. E. Blaser, administrator of Henry J. Fassbinder, against the Osage River Gravel Company. Judgment for defendant on demurrer, and plaintiff appeals. Affirmed.

James H. Lay, of Jefferson City, for appellant.

McCune, Harding, Brown & Murphy, of Kansas City, for respondent.

BLAIR, P. J.

On March 17, 1914, Henry J. Fassbinder died from injuries received while in the employment and working at the gravel plant of respondent. May 3, 1915, Fassbinder's administrator began this action to recover damages for his death. A demurrer to the petition was filed and sustained. Appellant refused to plead further. Judgment was rendered, and this appeal was taken. One ground of the demurrer was that the action was barred by the statute of limitations.

Appellant makes but one contention. He argues that the cause is governed by the five-year limitation prescribed by section 1889, R. S. 1909, and not by section 5429, R. S. 1909. Appellant concedes and the petition alleges that his right to sue is based upon section 5426, R. S. 1909, as it stood in 1915. This section is a part of the Damage Act, which gives a right to sue in enumerated cases. Section 5429 is a part of the same act, and requires all actions under the act or article to be brought within one year. Section 1889, art. 9, c. 21, R. S. 1909, is a part of the general statute. It contains language which in this case may be conceded to be general enough, if not restricted by other provisions or applicable rules of construction, to include all actions for personal injuries. The restriction which excludes from section 1889 actions instituted under section 5426 is found in section 1907, R. S. 1909, which expressly provides that "the provision of articles 8 and 9 of this chapter [21] shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute." Clark v. Railroad, 219 Mo. loc. cit. 530, 531, 118 S. W. 40. The case cited (Sommerfiled v. Transit Co., 108 Mo. App. 718, 84 S. W. 172) has no application. In that case the plaintiff was the injured person. Defendant attempted to invoke against him, in an action for wrongful ejection from a car, the special limitation applicable to assault. The court held the action was not for an assault,...