Whisler v. Kuckler, 75--027
| Decision Date | 24 June 1975 |
| Docket Number | No. 75--027,75--027 |
| Citation | 538 P.2d 477,36 Colo.App. 200 |
| Parties | Russell D. WHISLER, Plaintiff-Appellant, v. Joseph C. KUCKLER et al., Defendants-Appellees, and Bill Davis, Defendant. . I |
| Court | Colorado Court of Appeals |
Joseph R. Marranzino, Stephen E. Tinkler, Denver, for plaintiff-appellant.
Naiman & Diamond, Chris J. Diamond, Geer Goodwin & Chesler, Robert E. Goodwin, Denver, for defendant-appellee, Joseph C. Kuckler.
Bruno, Bruno & Bruno, Louis B. Bruno, Denver, for defendant-appellee, Paige O. Lyda.
Wesley H. Doan, William J. Chisholm, Asst. City Atty., Denver, for defendant-appellee, the City and County of Denver.
Wood, Ris & Hames, F. Michael Ludwig, Denver, for defendant-appellee, Stout Street Electric Co., Inc.
Plaintiff, Russell D. Whisler, appeals from an order of the district court dismissing his complaint. We reverse.
Plaintiff instituted this action on July 19, 1974, seeking to recover damages for assault and battery, false arrest, and false imprisonment. Plaintiff's complaint alleged that the acts were committed on September 16, 1972, at which time he was a minor, having been born on February 20, 1952.
Defendants answered denying the allegations and moved for judgment on the pleadings on the ground that recovery on the plaintiff's complaint was barred by the statute of limitations, §§ 13--80--102 and 13--80--116, C.R.S. 1973 (C.R.S. 1963, 87--1--2 and 87--1--17). After hearing, the trial court granted defendants' motion and this appeal followed.
Plaintiff contends that the trial court erred in determining that § 13--80--116, C.R.S. 1973, was the controlling statute for persons under disability. Plaintiff argues that since his disability was removed on February 20, 1973, when he reached the age of majority, the applicable statute is § 13--81--103(1) (c), C.R.S. 1973 (C.R.S. 1963, 87--2--3(1)(c)), under which he had until February 20, 1975, to commence his action.
The statutes to be construed read as follows:
Section 13--80--102, C.R.S. 1973.
Section 13--80--116, C.R.S. 1973, provides:
Article 81, entitled 'Limitations--Persons Under Disability,' contains the following pertinent provisions:
'Statute begins to run--when. (1) When in any of the statutes of the state of Colorado a limitation is fixed upon the time within which a right of action, right of redemption, or any other right may be asserted either affirmatively or by way of defense, or an action, suit, or proceeding based thereon may be brought, commenced, maintained, or prosecuted, and the true owner of said right is a person under disability at the time such right accrues, then:
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(c) If the disability of any person is terminated before the expiration of the period of limitation . . . and no legal representative has been appointed for him, then such person shall be allowed to take action within the period fixed by the applicable statute of limitations, or within two years after the removal of the disability, whichever period expires the later.' Sections 13--81--103(1) and 13--81--103(1)(c), C.R.S. 1973.
Section 13--81--101, C.R.S. 1973 (C.R.S. 1963, 87--2--1), defines 'applicable statute of limitations' as 'any statute of limitations which would apply in a similar case to a person not a person under disability.' A 'person under disability' is defined as 'a minor, mental incompetent, or any person under any other legal disability.' No legal representative was appointed for the plaintiff during his minority.
A study of § 13--80--116, C.R.S. 1973, and § 13--81--103(1)(c), C.R.S. 1973, reveals that these two sections are in conflict when an attempt is made to determine the time limit within which one may bring an action for assault and battery or false imprisonment after attaining majority. Specifically, one statute would allow such an action to be brought within two years after removal of the disability, while the other statute would bar the action after one year. This conflict has not previously been addressed by our courts.
In determining the application of these provisions we are guided by the principle that statutes be construed In pari materia so as to give effect to the legislative intent and to avoid inconsistencies and absurdities. Sections 2--4--201 and 2--4--206, C.R.S. 1973 (C.R.S. 1963, 135--1--201 and 135--1--203). Howe v. People, 178 Colo. 248, 496 P.2d 1040.
The history of the above sections reveals that what is now § 13--80--116, C.R.S. 1973, was first enacted in 1861 and has remained substantially the same to the present. What is now § 13--81--103(1)(c), C.R.S. 1973, was first enacted by Colo.Sess.Laws 1939, ch. 126 at 449, and contained a clause which repealed 'all acts and parts in conflict with or inconsistent with this act.' Although no judicial determination has been previously made by our appellate courts with regard to these enactments, it is apparent that the clause in the 1939 act effectively repealed the provision of the 1861 act then in effect with respect to the time within which those classes of persons covered by the 1939 act could institute actions.
When the 1953 Colorado Revised Statutes were adopted by the legislature, the provisions of the 1861 statute were reenacted as chapter 87, article 1, section 19, thereof, and again as chapter 87, article 17, of the 1963 Revised Statutes. The substance of the 1939 act was also adopted and reenacted in the 1953 Colorado Revised Statutes as chapter 87, article 3, but sections 8 through 13 of the 1939 act which contained the effective date, the repealing, constitutionality, severability, safety, and emergency clauses were not made a part of the 1953 Revised Statutes, nor do those sections appear in either the 1963 or 1973...
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