Preston v. Preston

159 S.W.2d 414, 289 Ky. 552, 1942 Ky. LEXIS 600

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 17, 1942
• Status: Published

Opinion

Opinion op the Court by

Van Sant, Commissioner

Reversing.

The cause of action was for damages growing out of injuries allegedly sustained 'by appellee as a result of being struck in tbe face by a shoe at tbe hands of appellant on tbe 4th day of October, 1937. Tbe petition was filed on tbe 4th day of October, 1938.

Section 2516, Kentucky Statutes, provides that an action for personal injuries shall be commenced within one year next after tbe cause of action accrues. When tbe computation of time is to be made from tbe act, tbe day on which tbe act was done must be included in the count, but, when tbe computation is made from the day itself, it must be excluded from tbe computation. Salisbury v. Commonwealth, 254 Ky. 77, 70 S. W. (2d) 987, and cases therein cited. In other words, if tbe basis of tbe action has been so completely consummated on tbe day of its commission or omission as to afford a right of action on that day, tbe day of its commission or omission must be included in tbe count; whereas, it may not be included in tbe count if tbe passing of tbe full day is a prerequisite to tbe determination that tbe cause of action has accrued.

Immediately after appellant struck appellee her right of action accrued, wherefore, she did not have to wait until tbe following day to bring suit. That being-true, her right to maintain tbe action under Section 2516 tolled on the 3rd day of October, 1938. Since tbe suit was not filed until tbe following day, defendant’s plea of limitations should have been sustained, and tbe court erred in failing so to do.

"Wherefore«the judgment is reversed with directions to dismiss tbe petition.