115 Kan. 92 | Kan. | 1924
The opinion of the court was delivered by
On July 5, 1922, the plaintiffs brought this action against Dickinson county, claiming damages because of a traction engine belonging to them having been injured by the collapse of a bridge on May 17, 1920. A demurrer to the petition was sustained upon the ground that the action was barred by the two-year statute of limitation, and the plaintiffs appeal.
The question involved is whether the period of limitation to be applied is three years, on the ground that the action is one “upon a liability created by statute, other than a forfeiture or penalty” (Civ. Code, § 17, subdiv. 2; R. S. 60-306, subdiv. 2) or two years, on the ground that it is “an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated” (same, subdiv. 3).
The trial court adopted the latter theory, obviously in reliance upon language used in the opinion in A. T. & S. F. Rld. Co. v. King, 31 Kan. 708, 3 Pac. 565, which is broad enough to support it. There a section hand sued a railroad company for injuries due to the negligence of a fellow employee. The fellow-servant rule would have prevented a recovery except for the statute making a railroad “liable for all damages done to any employee ... by any mismanagement of its . . . other employees,” thus withdrawing railroads from its operation. (Laws 1874, ch. 93, § 1; Gen. Stat. 1915, § 8477; R. S. 66-235; K. P. Rly. Co. v. Peavey, 29 Kan. 169, 175.) The action was held to be barred by the two-year statute under the clause above quoted. It was argued on behalf of the railroad company, and the court said the views so expressed were “in the main correct,” that “the language 'injury to the rights of another, not arising on contract, and not hereinafter enumerated,' defines a class of injuries, and carves such class out of the general rule given in the second clause” — that is, the clause allowing, three years in which to bring an action “upon a liability created by statute, other than a forfeiture or penalty.” If all
Under statutory provisions similar to our own the same result has been reached as in the King case, upon the ground, however, that the right of a railroad worker to recover for an injury caused by the negligence of a fellow employee was not created by the statute abolishing the fellow-servant rule in such cases, but that the statute merely carried forward an existing right and removed a defense which would otherwise have been available. (Beeler et al. v. Butte & London C. D. Co., 41 Mont. 465, 472-3.)
The decision in the King case was based in part upon the desirability of uniformity in the limitation period with respect to actions of the same character — a consideration not applicable here. It Has been cited by this court in but two instances. In one the
In a situation entirely analogous to that here presented the Ohio supreme court has held that the three-year statute applies. (Seymour v. Railway Company, 44 Ohio St. 12.)
The present action is one upon a liability created by statute. Without the statute there would be no basis whatever for the plaintiff’s claim. (Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140, 665.) The statute giving the right of action is not one relating to remedy or procedure; it concerns the substantive rights of the parties and imposes an obligation where none before existed. We hold that the plaintiff had three years in which to bring it. This makes it unnecessary to pass upon other questions that have been presented. So far as the language of the opinion in the King case is inconsistent with this conclusion it is disapproved.
The judgment is reversed and the cause is remanded with directions to overrule the demurrer to the petition.