Russell, C. J., dissenting.
Certified Question from Court of Appeals.
Action by the Texas Company against J. C. Davis, Agent, etc. Judgment for defendant, plaintiff brings error, and question certified. Question answered.
J. C. Knox, of Monroe, for plaintiff in error.
Miles W. Lewis, of Greensboro, and Robt. L, & H. C. Cox, of Monroe, for defendant in error.
HILL, J. The Court of Appeals desires instructions from the Supreme Court upon the following question involved in this case, to wit:
"Is a suit which was filed on February 28, 1922, and which was based on a cause of action 'arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or the Act of August 29, 1916 [U. S. Comp. St. § 1974a]), of such character as prior to federal control could have been brought against such carrier, ' barred by the provision of section 206 of the act of Congress approved February 28, 1920, known as the 'Transportation Act of 1920' (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc) requiring the filing of the suit 'not later than two years from the date of the passage of this act, ' the suit not being otherwise barred? Peterson v. Georgia R. & Banking Co., 97 Ga. 798, 25 S. E. 370; Curtis v. College Park Lumber Co., 145 Ga. 601, 602, 89 S. E. 680; Jones v. Kern, 101 Ga. 309 (1), 28 S. E. 850; Maxwell v. Liverpool Insurance Co., 12 Ga. App. 127 (3), 76 S. E. 1036; English v. Ozburn, 59 Ga. 392; Jones v. Smith, 28 Ga. 41; Taylor v. Brown, 147 U. S. 640 (4), 13 Sup. Ct. 549, 37 L. Ed. 313; Arnold v. United States, 9 Cranch (U. S.) 104, 3 L. Ed. 671; Sohn v. Wa-terson, 17 Wall. (U. S.) 596, 21 L. Ed. 737; 26 R. C. L. 742; Rusk v. Hill, 117 Ga. 722 (1), 726, 45 S. E. 42; 26 R. C. L. 746; Halbert v. San Saba, 89 Tex. 230, 34 S. W. 639, 49 L. R. A. 193, and notes; Lanham v. McKeel
244 U. S. 582, 37 Sup. Ct. 708, 61 L. Ed. 1331; Menges v. Frick, 73 Pa. 137, 13 Am. Hop. 731; Budds v. Frey, 104 Minn. 481, 117 N. W. 158, 17 L. R. A. (N. S.) 1195, 124 Am. St. Rep. 629, 15 Ann. Cas. 27; Blackman v. Nearing, 43 Conn. 56, 21 Am. Rep. 634; Edmundson v. Wragg, 104 Pa. 500, 49 Am. Rep. 590; 16 Rose's Notes, 332; In re Babjak (D. C.) 211 Fed. 551, 554."
The question propounded by the Court of Appeals, if an open one, would not be free from doubt or uncertainty, in view of the many conflicting decisions in other jurisdictions on this question. However, the decisions of the Supreme Court of the United States, the Supreme Court of Georgia, and the Court of Appeals of Georgia, seem to be harmonious upon this question. In Lanham v. McKeel, 244 U. S. 582, 37 Sup. Ct. 708, 61 L. Ed. 1331, the Supreme Court of the United States stated and held as follows:
"An order of the Secretary of the Interior, approving an Indian agent's recommendation that restrictions on alienation be removed from an Indian's allotment, was made on March 26, 'to be effective thirty days from date.' Held that the approval became effective on the thirtieth day after its date, i. e., on April 25th, and enabled the allottee to make a valid conveyance on that day."
In Peterson v. Ga. R. & B. Co., 97 Ga. 798, 25 S. E. 370, the Supreme Court of Georgia held:
"Following the rule for computing time laid down by this court in the cases of Jones v. Smith, 28 Ga. 41, English v. Ozburn, 59 Ga. 392, Barrett v. Devine, 60 Ga. 632, and W. & A. R. R. v. Carson, 70 Ga. 388, which rule was discussed and recognized in the case of Blitch v. Brewer, 83 Ga. 333, an action brought on the 24th of October, 1893, for injuries to the person alleged to have been sustained on October 24th, 1891, was barred by the statute of limitations (Code, § 3060), and, therefore properly dismissed."
In delivering the opinion of the court, Lumpkin, J., said:
"This question, if an open one in this state, would not be altogether free from difficulty. But, in principle, it has been definitely settled, we think, by previous adjudications of this court. It is proper to remark, in the first place, that a right of action 'accrues' as soon as the party is entitled to apply to the proper tribunal. Angel on Limitations (6th Ed.) § 42. It can scarcely be doubted that the plaintiff in this case might properly have filed his declaration against the defendant on the very day he received the injuries of which he complains. If, then, the computation of time is to be made from that day, more than two years had elapsed before he filed his action. In Jones v. Smith, 28 Ga. 43, it was said that, commencing with the 28th of November, six months would be out at the end of the 27th of the following May. In English v. Ozburn, 59 Ga. 392, it was held that full three months had elapsed from the 2d of January to the 2d of the ensuing April. Asimilar ruling was made in Barrett & Carswell v. Devine, 00 Ga. 632, in which it was decided that from June 12th to September 12th, more than three months had elapsed; and this decision is cited approvingly, in W. & A. R. R. v. Carson, 70 Ga. 3S8, in which it was held that the period of time elapsing between October 12, 1880, and January 12, 1881, was more than three months. In all of these cases, save that in the 59th Ga., the question was whether or not a writ of certiorari had been sued out in time. All of them are cited, and the basis of computation employed therein recognized as correct, in Blitch v. Brewer, 83 Ga. 336, 337."
In the case of Rusk v. Hill, 117 Ga. 722, 45 S. E. 42, it was held:
"In computing the ten days within which a bill of exceptions should be served, the Political Code, § 4, par. 8, to the effect that the first or last day should be excluded, is applicable. It follows that where a bill of exceptions is certified on the 10th day of the month and is served on the 20th day of the same month, such service is within the ten days prescribed."
In the Rusk Case the court was dealing with days and not with years, and it was pointed out in Curtis v. College Park Lumber Co., 145 Ga. 601, 89 S. E. 680, that—
"In Georgia provision is made by statute whereby, when a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted. Civil Code, § 4 (8). But this rule does not apply where years and months are to be computed. See Peterson v. Ga. R. & C. Co., 97 Ga. 798 (25 S. E. 370)."
Therefore the decision in the Rusk Case, considered in the light of the decision in the Curtis Case, is not in conflict with the ruling in the Peterson Case.
Following the line of decisions of the Supreme Court, the Court of Appeals, in the case of Maxwell v. Liverpool & London & Globe Ins. Co., 12 Ga. App. 127, 76 S. E. 1036, held:
"Where the uncontroverted evidence shows that the property insured was consumed on the morning of the 24th of January, 1910, the twelve months' limitation as to commencement of the action expired at midnight of the 23d of January, 1911; and, under this stipulation of the contract, the suit on the policy, which was not commenced until January 24, 1911, was barred."
It will thus be seen that the three courts quoted from are in harmony upon this question. The difficulty arises in construing the act of Congress approved February 28, 1920, " known as the "Transportation Act of 1920, requiring the filing of suits "not later than two years from the date of the passage of this act, " the suit not being otherwise barred. The words "not later than two years, " standing alone, might be less free from difficulty than when the whole sentence is considered, for the language requires filing of
the suit not later than two years "from" the date of the passage of the act.
There is a very interesting discussion of the use of the word "from, " in cases like the present, in a note to Budds v. Frey, 104 Minn. 481, 117 N. W. 158, 17 L. R. A. (N. S.) 1195, 124 Am. St. Rep. 629, 15 Ann. Cas. 24, 27, as follows:
"Whether the word 'from' is a word of exclusion or inclusion is a much mooted question. Various rules regarding the construction to be put upon the term have been adopted, only to be later discarded and new rules approved. But much of the confusion existing in the cases involving the construction to be placed upon the word in computing time will be found to be due to the desire of the courts to give due effect to the intention of the parties as expressed in the particular language or phrase used in each case. Generally speaking, the word 'from' is a term of exclusion, unless by necessary implication it is manifestly used in a different sense. Neal v. St. Louis, etc., R. Co., 71 Ark. 445, 78 S. W. 220; Bradley v. Rice, 13 Me. 198, 29 Am. Dec. 501; State v. Bushey, 84 Me. 460, 24 Atl. 940; Bigelow v. Wilson, 1 Pick. (Mass.) 485. In the case last cited the court said: 'We are warranted by the authorities to say that when time is to be computed from or after the day of a given date, the day is to be excluded in the computation; and that this rule of construction is never to be rejected unless it appears that a different computation was intended. So, also, if we consider the question independent of the authorities, it seems * * * impossible to raise a doubt. No moment of time can be said to be after a given day, until that day has expired.'
"The rule most consonant with justice and common sense, as well as that approved by the more recent decisions, is the one adopted in Pugh v. Leeds, 2 Cowp. (Eng.) 714. In that case the question was whether the execution of a lease for twenty-one years, to commence from the day of the date thereof, was a compliance with a power reserved in a marriage settlement to lease for twenty-one years in possession, but not in reversion. The answer to this question depended on whether the phrase 'to commence from the day of date' was to be construed to be exclusive or...
