Onions v. Covington & Cincinnati El. R. R. & Transfer & Bridge Co.

| Ky. Ct. App. | Oct 24, 1899

'JUDGE HOBSON

delivered the opinion oe the court.

Appellant filed this action to recover of appellees damages alleged to be sustained by her from the operation of railroad trains on Fourth street in Covington, Kentucky, in front of her property. The defendants pleaded limitation of five years. To this she replied that she was a married woman when the railroad track was located on the street, and that her coverture continued up to December 19, 1891, when her husband died. The suit was filed on April 23, 1896. The railroad was located in the street in August, 1889, and, as has often been held by this court, the action by the property owner in this class of cases is governed by the five-year statute of limitation, and barred after five years from the time the operation of the trains began. This action, not having been instituted within five years after the right of action accrued, was barred, unless the statute of limitation was suspended by the appellant's coverture. The action is one of those mentioned in the third article of the statute; and by section 2525, Kentucky Statutes, embraced in the same chapter, it is provided:

"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."

If this exception applies, the statute of limitation is unavailing, as the action in this case was brought within less than two years after appellant’s disability of coverture was removed by the death of her husband. But practically the same statute has been in force since 1814. Identically the same provision was contained in the Revised Statutes adopted in .1852, and was copied from them into the General Statutes adopted in 1873. But after this, in 1876, the Legislature enacted the Code of Practice in Civil Cases, by section 34 of which it is provided:

“In actions between husband and wife; in actions1 concerning her separate property; and in actions concerning her general property in which he refuses to unite, she may sue or be sued alone.”

The property in this case was the general'estate of the wife, and as she by this section might sue or be sued alone concerning it, if her hdsband refused to unite with her, it is insisted for appellees that she was under no disability to bring the action, and that, therefore, the statute continued to run against her. The lower court took this view, and we are referred to several decisions in other States sustaining it.

But in Wood on Limitations (volume 2, section 240), the learned author says:

“In those States in which married women are excepted from the operation of ' the statute, the circumstance that they are by statute clothed with the power of suing and being sued, or even endowed with all the privileges, rights, and liabilities of a feme sole, would hardly seem to be sufficient to change the rule, or deprive them of the benefits of the disability, if they choose to avail themselves of it; and the circumstance that the Legislature has clothed them with these rights, without making any change in the statute of limitations with respect to them, indicates an intention on the part of the Legislature that they shall still remain within the exception contained therein.”

We are satisfied it will do violence to the intention of the Legislature of this State to adopt any other rule here.

Section 34 of the Code of 187G is taken from section 49 of the Code of. 1851, which read as follows:

“Where a married woman is a party her husband must be joined with her, except that when the action concerns her separate property, she may sue alone, and where the action is between herself and her husband she may sue or be sued alone.”

This Code was passed before the Revised Statutes. Under it the wife could sue alone in actions concerning her separate property or between herself and her husband; but, notwithstanding this, when the Legislature came afterwards to adopt a statute of limitations, it exempted married women from the operation of the statute, not only in cases where they could not sue alone, but in all cases. The only substantial change in this section made in the Code of 1876 is that it allowed her to sue alone in actions concerning her general property where her husband refused to unite with her. The purpose of this change was only to extend the powers of married women. The Legislature evidently did not have in mind the statute of limitations in adopting this provision. Under the old Code, it had never been contended, so far as we are aware, that in actions between husband and wife, or concerning her separate, estate, the statute ran against the wife during her coverture; and, in extending the power of the wife to sue alone, it is evident that the Legislature did not intend a change in the existing statute of limitations. Constructive repeals are never favored, especially not in a matter apparently not in the legislative mind at the time.

Though this precise question has never been presented, this court has often announced the construction of the statute contended for by appellant.

In McDanell v. Landrum, 87 Ky., 404" court="Ky. Ct. App." date_filed="1888-09-15" href="https://app.midpage.ai/document/mcdanell-v-landrum-7132045?utm_source=webapp" opinion_id="7132045">87 Ky., 404, [12 Am. St. R., 500; 9 S.W., 223" court="Ky. Ct. App." date_filed="1888-09-15" href="https://app.midpage.ai/document/mcdanell-v-landrum-7132045?utm_source=webapp" opinion_id="7132045">9 S. W., 223], after showing that the wife did not become discovert until within three years before the action was brought, this court says: “As the three years had not then elapsed, the plea of limitation can not avail.” In Bankston v. Crabtree Coal Mining Co., 95 Ky., 458, [25 S.W., 1106" court="Ky. Ct. App." date_filed="1894-04-12" href="https://app.midpage.ai/document/nall-v-miller-7132959?utm_source=webapp" opinion_id="7132959">25 S. W., 1106], it was also said in another suit by a married woman, where limitation was pleaded:

“But although her cause of action accrued in April, 1871, yet she was under the disability of coverture, and perhaps infancy; and therefore she may institute her action in spite of the lapse of fifteen years, provided she does so within three years after the time when her disability is removed.”

The same view , of the statute was announced in O’Dell v. Little, 82 Ky., 146" court="Ky. Ct. App." date_filed="1884-05-31" href="https://app.midpage.ai/document/odell-v-little-7131518?utm_source=webapp" opinion_id="7131518">82 Ky., 146; Stephens v. McCormick, 5 Bush, 181" court="Ky. Ct. App." date_filed="1868-04-26" href="https://app.midpage.ai/document/stephens-v-mccormick-7130625?utm_source=webapp" opinion_id="7130625">5 Bush, 181; Bransom v. Thompson, 81 Ky., 387. These cases were under the clause of the statute relating to actions for the recovery of real property, but the language of the exception in both cases is so nearly alike that evidently a different rule could not be adopted for- their construction, and in Decourcy v. Dicken, 1 Ky. L. Rptr., 260" court="Ky. Ct. App." date_filed="1880-06-17" href="https://app.midpage.ai/document/decourceys-admr-v-dickens-7155565?utm_source=webapp" opinion_id="7155565">1 Ky. Law Rep., 260, the same rule was applied in a personal action.

It is insisted that these are mostly dicta,- and that this precise point lias never been passed on by the court; but it must be remembered that it is nearly fifty years since the adoption of the Code of Practice, and, if this question has never in all that time been presented, it is very strong evidence that the bench and bar did not understand the rule to be as contended for by appellees. After this construction of the statute has been so often announced by this court, and the Legislature has apparently acquiesced in it, great injustice might result if a contrary rule were declared now by judicial action. In the revision of the statute law of the State upon the adoption of the new Constitution, it seems that the Legislature adopted no new statute of limitation, but simply left the old act in force. The construction of the statute had then been so often declared that it must be presumed the Legislature acted with knowledge of this construction in leaving the statute in force. The statute of limitations is to be construed with reasonable strictness; cases are never to be brought within its operation upon doubtful intendment; nor should a different rule of interpretation be adopted bringing within the statute, after the time has run, cases not fairly within its words, thereby catching people' unaware. (Wood on Limitations, section 4.) Although a married woman, after 1876, might sue alone as to her general estate, she was by no means relieved of the disability of coverture. She was not only under the dominion of her husband, but he owned absolutely all her personal property. He might reduce to possession her ehoses in action, and he had the right to the use of her real estate, with power to rent it out for not more than three years at a time and receive the rent. General Statutes, p. 720. The wife had no power to make contracts, or dispose of her general property, in any way, and, when her disabilities remained substantially as at common law it would be contrary to the entire spirit of our laws to allow limitation to run against her during her husband’s lifetime. That the Legislature did not intend to do so is apparent from the broad language of the exception, and the fact that it was brought over into both the Revised Statutes and the General Statutes after the adoption of the Code, which empowered the wife to sue in her own name in certain cases.

For these reasons we are of opinion that the Statute •did not run against appellant until the death of her husband, and that the court erred in sustaining the demurrer to her reply and in dismissing her action.

The judgment is therefore reversed, and cause remanded, with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.