Brown v. Emerson Brick Co.

83 S.E. 160, 15 Ga. App. 332, 1914 Ga. App. LEXIS 95

• Court: Court of Appeals of Georgia
• Decided: October 20, 1914
• Docket: 5666
• Status: Published

Opinion

Wad-e, J.

1. "Actions for injuries done to the person shall be brought within two years after the right of action accrues.” Civil Code (1910), § 4497. "A right of action for á tort accrues immediately upon the infliction of the injury.” Raleigh R. Co. v. W. & A. R. Co., 6 Ga. App. 616 (65 S. E. 586); Geneva Cooperage Co. v. Brown, 124 Ky. 16 (98 S. W. 279, 124 Am. St. R. 388) ; Benoit v. New York Central &c. R. Co., 94 App. Div. 24 (87 N. Y. Supp. 951).

2. "Following the rule for computing time laid down by this court in the cases of Jones v. Smith, 28 Ga. 41, English v. Ozburn, 59 Ga. 392, Barrett v. Devine, 60 Ga. 632, and W. & A. R. R. v. Carson, 70 Ga. 388, which rule was discussed and recognized in the ease of Blitch v. Brewer, 83 Ga. 333 [9 S. E. 837], an action brought on the 24th of October, 1893, for injuries to the person alleged to have been sustained on October 24th, 1891, was barred by the statute of limitations (Code [of 1882], § 3060), and therefore properly dismissed on demurrer.” Peterson v. Georgia Railroad &c. Co., 97 Ga. 798 (25 S. E. 370). See also Jones v. Kern, 101 Ga. 309 (28 S. E. 850); Maxwell v. Liverpool Ins. Co., 12 Ga. App. 127 (76 S. E. 1036).

3. This court has held that the provision of the Penal Code (1910), § 1, par. 8 (Civil Code, § 1, par. 8), that when a "number of days” is prescribed for the exercise of any privilege, or the discharge of any duty, and the last day falls on the Sabbath, "another day shall be allowed in the computation,” is not applicable so as to exclude Sundays where the computation is of months or years. McLendon v. State, 14 Ga. App. 274 (80 S. E. 692). A fortibri that provision is not applicable in a civil case involving such computation. See, as to rule for computing days, Wood v. State, 12 Ga. App. 651 (78 S. E. 140); Hill v. State, 14 Ga. App. 410 (81 S. E. 248); and as to difference in method of calculation where time is measured by days or by months and years, Hammond v. Clark, 136 Ga. 313, 322 (71 S. E. 479, 38 L. R. A. (N. S.) 77); Johnson v. Myers, 54 Fed. 417 (4 C. C. A. 399).; Vailes v. Brown, 16 Colo. 462 (27 Pae. 945, 14 L. R. A. 120); Benoit v. New York Central &c. R. Co., supra; Geneva Cooperage Co. v. Brown, supra.

4. The plaintiff in the present case having suffered injuries to his person on December 29, 1911, his action to recover damages therefor, filed on December 29, 1913,.was barred, by the statute above quoted; and this notwithstanding the 28th day of December, 1913, fell on the Sabbath, since the statute (Civil Code (1910)', § 4, par. 8) allowing the addition of another day in the computation applies only where a number of days is prescribed for the exercise of any privilege, and not where a period of months or years is so prescribed. Williams v. Lane, 87 Wis. 152 (58 N. W. 77); Vose v. Kuhn, 45 Misc. 455 (92 N Y. Supp. 34); Ryer v. Prudential Ins. Co., 185 N Y. 6 (77 N E. 727).

5.' If there were any conflict in the decisions of the Supreme Court as to the proper computation of time under the provisions of section 4497 of the Civil Code, the question as to the method of computation proper in the case sub judice might be certified to that court, in order that such conflict might be eliminated and the true rule declared; but, notwithstanding the criticism by Chief Justice Simmons in Rusk v. Hill, 117 Ga. 722, 728 (45 S. E. 42), the decision in Peterson v. Georgia Railroad &c. Co., supra, has never been overruled or set aside, and appears to be -in harmony with all the decisions of that court; and we must accept and follow as a binding precedent the rule there laid down. Maxwell v. Liverpool Ins. Co., supra. Judgment affirmed.

Roan, J., absent.