Cincinnati St. Ry. Co. v. Whitehead , 39 Ohio App. 51 ( 1930 )

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered in favor of the plaintiff, Robert Whitehead, in an action for loss of services and consortium brought by a husband whose wife was injured in a collision between a bus and street car, both operated by the defendant, the Cincinnati Street Railway Company. The wife was a passenger on the bus, and her injuries were received upon the fourth of January, 1927. The suit for loss of services of the wife was filed on June 28, 1929, more than two years and less than four years after the receiving of the injuries of which complaint is made. The two-year statute of limitations, Section 11224-1, General Code, effective August 2, 1927 (112 Ohio Laws, 238), was interposed in the amended answer of the street railway company as a defense to the action, and it is contended by the street railway company, plaintiff in error here, that the judgment is contrary to law because the suit was filed more than two years after the injuries were received by the wife.

It is contended on behalf of the defendant in error that it is not necessary to consider this question, as the extent of the injuries and amount of expense incurred were not developed until long after the date when such injuries were received, and that the statute runs from the date when the extent of the injuries is known and the expense incurred. We consider such claim untenable, and hold that the statute runs from the date of the reception of the injury.

The assignment of error does, however, raise an interesting question, and one which requires a careful consideration of the Act of April 21, 1927, incorporated in the General Code as Sections 11224 and 11224-1. Those sections read:

"Sec. 11224. An action for either of the following causes, shall be brought within four years after the cause thereof accrued:

"1. For trespassing upon real property;

"2. For the recovery of personal property, or for taking or detaining it;

"3. For relief on the ground of fraud;

"4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.

"If the action be for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it be for fraud, until the fraud is discovered.

"Sec. 11224-1. An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."

The provision of limitation in Section 11224-1 applies to two species of injury — "bodily injury" and "injuring personal property."

If the cause of action of the husband for loss of services is "an action for bodily injury," it was barred when the petition was filed; and if "an action for * * * injuring personal property" it is also barred.

It has been held by the Supreme Court that a statute of limitation affects the remedy and not the cause and applies to all causes coming within its terms upon which actions have not been commenced. Smith v. New York Cent. Rd. Co., 122 Ohio St. 45,55, 56, 170 N.E. 637.

First, was this an action for "bodily injury?" We think it manifest that the statute referred to a direct action for bodily injury and not an action for consequential injury to a third person. A case raising a similar question is Hey v. Prime, Exr., 197 Mass. 474,84 N.E. 141, 17 L.R.A. (N.S.), 570. In the opinion, at page 476 of 197 Massachusetts, 84 N.E. 141, 143, the court says:

"But where the husband also brings suit, because the disability arising from the tort has deprived him of either her services or matrimonial companionship, his right to recover rests upon the ground that the wrong suffered by him, while personal in effect, is regarded as purely consequential in character. Barnes v. Hurd,11 Mass. 59; Kelley v. New York, New Haven Hartford Railroad,168 Mass. 308, 311, 38 L.R.A., 631, 60 Am. St. Rep., 397, 46 N.E. 1063.

The same distinction between direct and consequential injuries is made in Section 466, "Husband and Wife," 13 Ruling Case Law, page 1419, where it is stated:

"It has, moreover, been held that such an action is not saved by a statute providing that `actions * * * of tort for assault, battery, imprisonment, or other damage to the person * * * shall not abate by death,' as the language `other damage to the person' includes such damages only as result from direct bodily injury but excludes consequential damages suffered by those who are injured from a wrongful interference with their rights, and where a husband sues because the disability to the wife arising from the tort has deprived him either of her services or companionship, his right to recover rests on the ground that the wrong suffered by him, while personal in effect, is regarded as purely consequential in character."

We hold therefore that the instant case is not an action for bodily injury.

Second, is this an action for "injuring personal property?"

"All property is divided into two general classes — real and personal. Ralston Steel Car Co. v. Ralston, 112 Ohio St. 306,314, 147 N.E. 513, 39 A.L.R., 334; 50 Corpus Juris, 743; volume 1, Cooley's Blackstone (4th Ed.), 443.

"The term `personal property' has, in law, a distinct technical meaning, which relates to the nature of the property itself and distinguishes it from real property. The term has been defined as goods, money, and all other movables which may attend the person of the owner wherever he may think proper to go, which is the definition given by Blackstone of `things personal,' or as goods and chattels. The term has also been defined as the right or interest which a man has in things personal, or any right or interest which he has in things movable, or the right or interest less than a freehold which a man has in realty. Too, the term `personal property' is used to apply both to the thing itself and the right or interest of the owner therein." 50 Corpus Juris, Section 32, page 759.

And again: "Although popularly the term `personal property' is used in a somewhat restricted sense to include only goods and chattels, tangible things, the subjects of personal use, in its broad and general sense it includes everything which is the subject of ownership not coming under the denomination of real estate; and all subjects of property not of a freehold nature, nor descendible to the heir at law, are personal property. The term has been held to include intangibles as well as tangibles, but it may sometimes be used to apply only to tangibles." Id., Section 36,

It may be said in passing that, while a chose in action is personal property, whether it arises ex contractu or ex delicto(City of Cincinnati v. Hafer, 49 Ohio St. 60, 65, 30 N.E. 197), the injury complained of was not an injury to a chose in action, but created a right of action after the injury occurred.

The broad definition of personal property is given in 22 Ruling Case Law, Section 38, page 63:

"In its general or ordinary significance, the term `personal property' embraces all objects and rights which are capable of ownership except freehold estates in land, and incorporeal hereditaments issuing thereout, or exercisable within the same. The term is frequently declared by statute to be co-extensive with money, goods, chattels, things in action, evidences of debt, and money. Other statutes specify with great detail what shall be included within the meaning of the term."

Employing the broad technical meaning, the term "personal property" in Section 11224-1, General Code, is broad enough to include the right of the husband to his wife's services, and is obviously broad enough, if so construed, to include the rights set out in Section 11224, and, if the term as used in Section 11224-1 is given such broad and technical construction, we have a two and a four year limitation covering the same actions. Paragraph 4, Section 11224, does not help us, for Section 11224-1, referred to in the phrase "hereinafter enumerated," if broadly construed, would, as pointed out, include the rights specified in paragraphs 1, 2 and 3.

But there is help in Section 11224, for in that section, in paragraph 2, the term "personal property" is patently given a distinctly limited meaning. An action for "the recovery of personal property" or for "taking or detaining it" must refer to chattel property — tangible property — as distinguished from incorporeal rights. The Legislature, having used a term more than once in the very same act, can hardly be charged with using it in one sense in one place and in a much broader and more technical sense in another place. It is also a well-established rule of statutory construction that, where one intent from the language used gives effect to two apparently conflicting sections, and another intent renders them contradictory, the language will be construed if possible so as to give effect to both sections.

We are of opinion that the Legislature in Section 11224-1 intended a limitation on actions for injury to tangibles, chattel property, as distinguished from actions for the violation of rights in or to personal property, or arising out of injury thereto.

By such construction, paragraph 4, Section 11224, General Code, is given full force and effect and applies to the instant case.

The instant case therefore not arising on contract, being an action in tort for negligent injury of the wife, and consequent deprivation of the husband of the wife's services and consortium, and not being an action enumerated in the succeeding sections, is not barred until four years after the injuries were received, and the petition herein was therefore filed in time. The judgment is affirmed.

Judgment affirmed.

HAMILTON, J., concurs.