169 S.W.2d 823 | Ky. Ct. App. | 1943
Affirming.
The petition in this action, filed by the appellant, J.D. Robinson, against the appellee, Dr. A.M. Hardaway, in January, 1941, alleged in substance the following facts: In the year 1938 Julian Hardaway, son of appellee and under 18 years of age, was granted a motor vehicle operator's license. Appellee signed his application therefor. An automobile being operated by Julian under *628 this license collided with the automobile of appellant, who was injured. In June, 1939, appellant filed an action for damages against Julian and in January, 1940, obtained judgment for $2,000. In November, 1940, execution was issued on this judgment and returned "no property found." Alleging that appellee was bound by the judgment against his son, the petition sought a recovery of the amount of the judgment.
The first paragraph of appellee's answer admitted the rendition of the judgment against his son but denied all other material allegations of the petition. The second paragraph pleaded the one year statute of limitation provided by section 2516 of the Kentucky Statutes (now KRS
From the briefs it appears that the demurrer was sustained by the trial court upon the theory that the action was barred by the one year statute of limitation. The question of limitation cannot be raised by demurrer to the petition, Cox v. Simmerman,
Appellant contends 1) that the judgment against Julian Hardaway is conclusive against his father and 2) that the limitation properly applicable is that contained in section 2515 of the Kentucky Statutes (now KRS
The action is based on sections 2739m-41 and 2739m-53 of the Kentucky Statutes (now KRS sections
"Any negligence of a minor under the age of eighteen years licensed upon application signed as *629 provided in section 9, when driving any motor vehicle upon a highway, shall be imputed to the person who shall have signed the application of such minor for said license, which person shall be jointly and severally liable, with such minor, for any damages by such negligence."
Though we assume, without deciding, that in this action the judgment against the son is conclusive that appellant's injuries were caused by the son's negligence, it is nevertheless our conclusion that the one year statute of limitation, rather than the five year statute, is applicable to the cause of action asserted.
Section 2739m-53 merely imputes to the father the negligence of his son and provides that he shall be "jointly and severally liable, with such minor, for any damages by such negligence." The action is, in its final analysis, an action for injury to the person and the mere fact that the judgment was pleaded as being conclusive against appellee does not operate to prevent it from being such. The action is not on the judgment, since it was not a judgment rendered against appellee, and allegation and proof of extraneous facts, such as the signing of the application by appellee and the age of his son, are necessary to sustain a recovery. At the most, the ultimate effect of the judgment as to appellee is its conclusiveness as to negligence and damage resulting therefrom. Clearly, the action is one for injury to the person, a conclusion further fortified by the fact that the action against father and son may be a joint one — causes of action against joint defendants are, in general, identical.
There was no implied repeal of existing statutes of limitation by section 2515 nor was it intended to preempt the field occupied by other statutes. It was designed to deal with new liabilities created by statute as to which no existing statute of limitation was applicable and it was therefore advisable to fix a limitation as to such newly created liability. While not expressly stated, this view was, in effect, adopted in Irwin v. Smith,
The statute under which appellee's liability is asserted merely imposes responsibility on the father for the son's negligence. A right of action, a liability for the negligence, was in existence. The statute created no new type of liability but only brought others into the area of responsibility. We think it is clear that section 2515 was not intended to embrace such a situation as this and that the one year limitation provided by section 2516 as to an action for injury to the person applies.
Affirmed.