Laurent v. Bernier

| Kan. | Sep 15, 1863

By the Court,

Cobb, C. J.

Bernier brought his action in the district court on the twenty-fourth day of December, 1860, for wounding him by the negligent disgharge of a gun. Laurent answered, setting up as defenses, first, that the cause of action did not accrue within three; second, that it did not accrue within four; and third, that it did not accrue with in two years before the commencement of the action.

To those several allegations, Bernier demurred on the ground that neither of them constituted a defense to the action. The court sustained the demurrer, and Bernier recovered a judgment, which Laurent seeks to have reversed for error of the court, in sustaining- the demurrer.

The sole question is whether the cause of action was barred by the statute of limitations, and that question depends solely on the construction of the limitation law, contained in the code procedure in 1859. The plaintiff in error claims that section of twenty-two of the code applies to t’he case, and requires the action to be commenced ivithin two. years after the cause of action accrued, while the defendant insists that the case falls within the provisions of section twenty-five, which allows ten years to commence actions for causes therein referred to.

We think neither is correct. The language of neither of those sections seems appropriate tó describe such a cause of action as the one in question. But section twenty-three declares that “ an action for libel, slander, assault, battery, malicious prosecution or false imprisonment,” can only be brought within one year. Bouvier’s Law Dictionary, (yol. 1, p. 162,) defines a battery as ££ the. unlawful touching the person of another by the aggressor himself or any other substance put in motion by him,” and after citing several authorities, proceeds to say, ££ it must be either willfully committed or proceed from want of due care,” and cites Str. 596, Hob. 134, Plowd. 19, 3 Wend., 391.

In Bullock vs. Babcock, (3 Wend. 391,) the defendant, a boy, negligently shot an arrow, and thereby put out the plaintiff’s eye. Action was brought for trespass, assault and battery, and the plaintiff had a verdict. A motion was made in the supreme court for a new trial, but the verdict was sustained. Marcy, justice, delivered the opinion- of the court, and cited several English authorities, holding an action for a battory ter be maintainable for such negligent woundirui. These authorities show that the wounding charged in the caso under consideration muy properly be described as a battery, and the ease, therefore, comes within the provisiotis of section twenty-three above cited, limiting the time for commencing action to one year. The three defenses set up were, therefore, all valid, and the demurrer should have been overruled.

The judgment of the district court must, therefore, be reversed, with cost to plaintiff in error, end the cause remanded for a new trial.

All the justices concurring.