St. Clair v. Bardstown Transfer Line, Inc.
| Citation | 310 Ky. 776,221 S.W.2d 679 |
| Parties | ST. CLAIR v. BARDSTOWN TRANSFER LINE, Inc. |
| Decision Date | 24 June 1949 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County; Wm. H. Field, Judge.
Action by Lillian St. Clair, administratrix of the estate of Samuel St. Clair, deceased, against Bardstown Transfer Line, Inc. to recover for decedent's wrongful death in a collision with defendant's truck. From a judgment sustaining defendant's demurrer, plaintiff appeals.
Reversed with directions.
A. Scott Hamilton, Louisville, for appellant.
Robert P. Hobson and Woodward, Hobson & Fulton, Louisville, for appellee.
On October 5, 1946, Samuel St. Clair was killed by a collision with a truck on Market Street between 10th and 11th Streets in the city of Louisville. On February 4, 1948, appellant Lillian St. Clair, widow of the deceased, was appointed administratrix of his estate after which, on February 17 1948, she filed this action against appellee, Bardstown Transfer Line, Inc., seeking to recover judgment against it in the sum of $25,000, and in her petition she alleged that the employee (not naming him) of appellee who was driving the truck at the time was guilty of negligence in its operation but for which the collision would not have happened.
Defendant answered admitting the collision and the consequent death of plaintiff's decedent, but it denied that his death was produced by any negligence of its servant operating its truck. It then alleged contributory negligence on the part of the deceased, but for which the collision would not have occurred. In another paragraph it pleaded the statute of one year limitation in bar of the action, which was shown by the petition on its face, the action being filed 1 year, 4 months and 12 days after the death of appellant's decedent.
Plaintiff in her reply sought to avoid the plea of limitations under the provisions of subsection (2) of section 413.190, KRS, which says:
In her reply in alleging that avoidance she stated that 'the defendant, through its agents, servants and employees, obstructed the prosecution of this action in that the defendant's agent, who was operating the said truck at the time it ran over and killed the plaintiff's intestate, failed to stop the said vehicle at the scene of the accident, but to the contrary fled therefrom and failed to report the accident and concealed the identity of the owner of the said truck and the operator thereof', and 'that by reason of the foregoing she did not have sufficient information upon which to base a claim against the defendant for the death of her decedent until after the expiration of the period of limitations.'
Defendant demurred to plaintiff's attempted avoidance of the running of the statute of limitations against her right of recovery, which the court sustained, and upon plaintiff declining to plead further her petition was dismissed, from which judgment she prosecutes this appeal.
For convenience we will refer to the quoted subsection as the tolling statute, and to paragraph (a) of subsection (1) of 413.140, KRS, as the limitation statute for this character of action, which is one year from the time of the injury, including death.
The sole question involved in the case, and to which counsel for both sides address themselves, is the sufficiency of plaintiff's reply in avoidance of the statute of limitations as prescribed in the tolling statute. We have held in a number of cases that where the defendant conceals plaintiff's cause of action in such a way as that it could not be discovered by the exercise of ordinary diligence on the latter's part that the right of action did not accrue until such discovery was made and which cases particularly involve trespasses of miners of mineral upon adjoining...
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Hall v. Musgrave
...Bledsoe & Co. v. Elkhorn Land Co., 219 F.2d 556 (6th Cir. 1955); Adams v. Ison, 249 S.W.2d 791 (Ky.1952); St. Clair v. Bardstown Transfer Line, 310 Ky. 776, 221 S.W.2d 679 (1949); City of Louisa v. Horton, 263 Ky. 739, 93 S.W.2d 620 (1936); Chesapeake & N. Ry. v. Speakman, 114 Ky. 628, 71 S......
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...from state); Buss v. Robison, 255 S.W.2d 339, 343 (Tex.Civ.App.1952) (legal disability). 26 St. Clair v. Bardstown Transfer Line, 310 Ky. 776, 221 S.W.2d 679, 680-681, 10 A.L.R.2d 560 (1949); Brookshire v. Burkhart, 141 Okl. 1, 283 P. 571, 573-578, 67 A.L.R. 1059 27 Searl v. Earll, supra no......
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...reach a just result. See, e.g., Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (Sup.Ct.1942); St. Clair v. Bardstown Transfer Lines, Inc., 310 Ky. 776, 221 S.W.2d 679, 10 A.L.R.2d 560 (Ct.App.1949). Relief against limitations is given even to owners of lost property to prevent chance enrichmen......
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