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WALKER v. MUMMERT. (11/25/58)

November 25, 1958

WALKER, APPELLANT,
v.
MUMMERT.



Appeal, No. 9, May T., 1958, from judgment of Court of Common Pleas of York County, Jan. T., 1957, No. 220, in case of Dewey S. Walker v. Lester R. Mummert, Sr., et al. Judgment affirmed.

COUNSEL

David Freeman, with him Wilson H. Oldhouser, for appellant.

William W. Hafer, for appellees.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 394 Pa. Page 146]

OPINION BY MR. JUSTICE COHEN.

Did the incapacity of a plaintiff who was non compos mentis at the time he was injured toll the running of the statute of limitations applicable to his action for personal injuries?

[ 394 Pa. Page 147]

On June 29, 1953, plaintiff was struck and injured by an automobile which was operated by the defendant Mummert, Jr., in an allegedly negligent manner. At the time of the accident the plaintiff was non compos mentis and confined to the Harrisburg State Hospital. His incompetency continued until December 17, 1955, on which date he was paroled from the hospital. Thereafter, on December 21, 1956, he instituted the present suit in trespass for the personal injuries suffered in the automobile accident. Judgment on the pleadings was entered in favor of the defendants on the ground that the action was barred by the applicable statute of limitations, and this appeal followed.

For over one hundred and seventy-five years the colonial statute of limitations, Act of March 27, 1713, (1 Sm. L. 76 § 1), 12 P.S. § 31 governed all actions brought in the courts of this Commonwealth. That act provided, inter alia, that all actions of trespass "shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say... within six years next after the cause of such actions...." However, section five of the act contained exceptions tolling the statute on behalf of persons under a disability: "If any person... who is or shall be entitled to any such action of trespass... be, or, at the time of any cause of such action given or accrued, fallen... non compos mentis... then such person... shall be at liberty to bring the same actions, so as they take the same within such times as are hereby before limited, after their... being of... sound memory...." Act of March 27, 1713, (1 Sm. L. 76 § 5), 12 P.S. § 35.

Then in 1895 the legislature passed the Act of June 24, 1895, P.L. 236, § 2, 12 P.S.§ 34 which reduced the period during which actions for personal

[ 394 Pa. Page 148]

    injuries could be brought from six years to two: "Every suit hereafter brought to recover damages for injury wrongfully done to the person... must be brought within two years from the time when the injury was done and not afterwards...." Although the Act of 1895 made no reference to the Act of 1713, this Court held in the case of Peterson v. Delaware River Ferry Co., 190 Pa. 364, 42 Atl. 955 (1899) that insofar as relevant it impliedly repealed the earlier enactment.

In the Peterson case plaintiff was injured while a minor and five years later an action for personal injuries was brought in her behalf. It was argued that the suit was timely because the Act of 1895 affected only section one of the 1713 statute, (which permitted actions for personal injuries to be brought within six years after the date of the occurrence of the injury), and left in full force and effect section five of that act, (which tolled the statute for incompetents). In rejecting this argument the Court stated: "The act of 1895... is a general act in the nature of a statute of limitations. Its terms are general, and make no exceptions in favor of persons under disability. The settled rule is that infants as well as all others are bound by the provisions of such statutes. 'A saving from the operation of statutes for disabilities must be expressed or it does not exist:' Warfield v. Fox, 53 Pa. 382. 'There is no limitation in the act which excludes persons under disabilities. "Any person" means every person.'" 190 Pa., supra, at 365.

For purposes of tolling the statute of limitations, the disability of one who is non compos mentis cannot be distinguished from the disability of one who is a minor, and accordingly, the Peterson ruling would control our disposition of the present case. ...


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