116 Ark. 198 | Ark. | 1915
Lead Opinion
(after stating the facts). Appellant contends that the court erred in giving instruction numbered 1, peremptory in effect, taking from the jury consideration of its plea of .the statute of limitations, .and we agree with the contention.
The railroad company brought suit against the Hunter State Biank and H. O. Penrose-, for damages for the wrongful taking of the automobile on December 30, 1909, shipped -over its line to- Wheatley, Arkansas. This suit was begun on the 30th day of April, 1910, against the s-a-i-d appellees -'and appellant did not become- a party thereto until iaf ter the filing of their joint answer on the 7th day of March, 1913, praying -that it be made- a party defendant.
Appellant answered on the- 23d day of April, 1914, denying liability and by amendment on March 3, 1914, pleading the statute of limitations of three- years against appellee’s cause of action. The- amendment of appellee’s complaint, asking judgment in' the alternative against appellant, was not made until after the- hearing of the •cause was begun on March 3, 1914.
It follows that the court erred in 'giving said instruction and since the undisputed testimony .shows that more than three years elapsed after the railroad company’s cause of action accrued before suit was commenced against appellant company, the court should have directed a verdict in its favor.
The judgment i.s therefore reversed and the cause dismissed. .
Dissenting Opinion
DISSENTING OPINIÓN.
dissenting. The 'evidence was sufficient to warrant ,a finding that the conduct of appellant amounted' to concealment' of the fact that delivery of the automobile wtas procured by its own agent without surrender of the bill of lading. The jury found that the automobile was in fact delivered by the oarrier to appellant's agent, and the failure to disclose that fact, when the carrier was called on to pay damages on account of the alleged wrongful delivery, was a concealment. The assertion of the claim was equivalent, under the circumstances, to an affirmation that the delivery was wrongful, and since it is found by the jury that the representation was false, it amounts to a concealment of fact which prevented- the statute of limitations from beginning to run until the discovery of the fraud. Conditt v. Holden, 92 Ark. 618.
The judgment should, we think, be affirmed.