Sturgill v. Chesapeake & O. Ry. Co.

• Decision Date: 11 November 1903
• Citation: 116 Ky. 659,76 S.W. 826
• Parties: STURGILL et al. v. CHESAPEAKE & O. RY. CO. et al.
• Court: Kentucky Court of Appeals

76 S.W. 826

116 Ky. 659

STURGILL et al. v. CHESAPEAKE & O. RY. CO. et al.

Court of Appeals of Kentucky.

November 11, 1903

Appeal fro Circuit Court, Boyd County.

"To be officially reported."

Action by Melcina Sturgill and others against the Chesapeake & Ohio Railway Company and others. From an order dismissing the petition, plaintiffs appeal. Reversed.

Jas. A Scott, for appellants.

W. H Wadsworth and E. L. Worthington, for appellees.

BURNAM C.J.

The appellants Melcina Sturgill and her husband, J. J. Sturgill brought this suit on the 5th day of April, 1901. She alleges in her petition that in 1880 she was the owner and in possession of two houses and lots abutting on a street in Catlettsburg, and that the appellee the Elizabethtown Lexington & Big Sandy Railroad Company in that year constructed a railroad in the street in front of her property so as to obstruct the access to and egress therefrom, and that the running of the trains thereon caused her house to be jarred, and smoke, soot, and cinders to be thrown thereon; that these injuries were permanent in their nature, and damaged her property $2,000; that after operating the railroad for a time the Elizabethtown, Lexington & Big Sandy leased it to its co-appellee the Chesapeake & Ohio Railway Company, who had continued its operation; and damages are sought to be recovered against both companies. The appellees, by separate paragraphs of their answer, plead the 5, 10, and 15 years' statutes of limitation to the cause of action set up in the petition. To these pleas the appellants demurred. The court overruled the demurrer. Thereupon the appellants filed a reply, in which they pleaded, in avoidance of the various pleas of limitation, that at the time of the accrual of the cause of action set out in their petition Melcina Sturgill was then, and is now, and had been ever since the accrual of her cause of action, continuously a married woman, and by reason of which the statute of limitations did not run against her. Thereupon defendants interposed a general demurrer to the plaintiffs' reply, which was sustained, and, plaintiffs declining to plead further, their petition was dismissed, and they have appealed.

As the injury complained of was inflicted 21 years before appellants instituted their suit, it is clear that their right of action is barred, unless the fact that she was at the time of the injury, and had ever since been, a married woman prevents the running of the statute. Section 2525 of the Kentucky Statutes of 1899 provides that: "If a person entitled to bring any of the actions mentioned in the third article of this chapter, except for a penalty or forfeiture, was at the time the cause of action accrued, an infant, married woman, or of unsound mind, the action may be brought within the like number of years after the removal of such disability, or death of the person, whichever happened first, that is allowed to a person having no such impediment to bring the same after the right accrued." Under this statute the various pleas of limitation relied on by the appellee were ineffectual to bar her claim, unless this statute has been expressly or by necessary implication repealed. Appellee contends, and the circuit court held, that section 2128 of the Kentucky Statutes of 1899, which is a part of the act of March 15, 1894 (Acts 1894, p. 177, c. 76), defining the property rights of the husband and wife, had this effect. The statute is as follows: "A married woman...