Irvin v. Bentley , 18 Ga. App. 662 ( 1916 )

I-Iodqes, J.

1. Under the statute of limitations, actions for “injuries done to the person” may be brought within two years after the right of action accrues; actions for “injuries to the reputation” must be brought within one year. Civil Code, § 4497.

2. This, is a case affecting the reputation of the plaintiff; and, the time of the alleged libelous communication being on or about March 8, 1914, and the writ being filed on September 30, 1915, the action is barred.

3; In cases of this character the right of action accrues to the plaintiff on the doing of the act by which the reputation is injured; and the fact that the plaintiff was ignorant of the act does not toll the statute. “Mere ignorance of the existence of the facts constituting a cause of action, does not prevent the running of the statute of limitations.” Davis v. Boyett, 120 Ga. 649 (48 S. E. 185, 66 L. R. A. 258, 102 Am. St. R. 118, 1 Ann. Cas. 386); 25 Cyc. 432.

4. The allegations of fraud in this case are insufficient to toll the statute. It is not alleged that if usual and reasonable diligence had been exercised, the alleged fraud could not have been discovered; nor that the defendant (an attorney who had received claims against the plaintiff, for collection) was under any obligation to disclose to him anything that the defendant had done affecting the rights of the defendant’s clients. No allegation in the petition as amended shows any fraudulent concealment; and, the suit being based upon the libel, and not upon the alleged i fraud, the allegations are insufficient.

5; The trial judge erred in not sustaining the demurrer.

Judgment reversed.

By amendment it is alleged that the defendant wilfully, fraudulently, and artfully concealed from the plaintiff that he had written the communication referred to above, and that he had compromised the plaintiff’s debts, for the further purpose of keeping the plaintiff in ignorance of his cause of action against the defendant, growing out of the said libelous communication; that the defendant effected such concealment of the false proposals of settlement by privately writing the plaintiff’s creditors, by failing to communicate to the plaintiff the fact that such letters had been written, and by fraudulently accepting payment in full of his indebtedness after the letters had been written; that the defendant purposely, and with intent to defraud the plaintiff, and for the purpose of concealing from him the false proposals of settlement, accepted payments on his indebtedness over an amount required to pay 66-2/3 per cent, of it, without communicating to him the fact of having written the letters containing the false proposals of settlement, when the defendant was aware that the plaintiff did not know, nor could reasonably be expected to know, by reason of such letters having been privately written, that such false proposals had been made; thereby inducing him to believe his creditors required payment in full of his indebtedness; that to further effect the concealment of such false proposals of settlement, the defendant represented to the plaintiff that he was collecting payment in full of the plaintiff’s indebtedness as attorney for the plaintiff’s creditors, and that the said creditors were demanding and receiving payment in full of the amounts due them; thereby fraudulently keeping him in ignorance of the said false proposals.

The defendant demurred on the grounds, among others, that no cause of action was set out in the petition; that the action was barred by the statute of limitations; that the allegations as to concealment of the cause of action did not show what was said or done by the defendant; and that it was not sufficiently set forth how the defendant deterred the plaintiff from knowing, nor why he could not in the exercise of ordinary diligence have discovered his alleged cause of action. The demurrer was overruled, and the defendant excepted.

Samuel H. Sibley, Fred. W. Gilbert, for plaintiff in error, cited:

Brown v. Holton, 109 Ga. 431; Civil Code (1910), § 4497; 25 Cyc. 432; Davis v. Boyett, 120 Ga. 649; Civil Code, § 4380; Anderson v. Foster, 112 Ga. 270; Maxwell v. Walsh, 117 Ga. 467; Sutton v. Dye, 60 Ga. 449; Freeman v. Craver, 56 Ga. 161; Marler v. Simmons, 81 Ga. 611, 613; Short v. Mathis, 107 Ga. 807; Crawford v. Crawford, 134 Ga. 114 (3); Small v. Cohen, 102 Ga. 248. Cases distinguished: Kirkley v. Sharp, 98 Ga. 488; Hickson v. Bryan, 75 Ga. 392; Fersons v. Jones, 12 Ga. 371.

Worley A. Nall, contra, cited:

Brown v. Holton, 109 Ga. 431; Kirkley v. Sharp, 98 Ga. 484 (1); Persons v. Jones, 12 Ga. 371 (3); Hickson v. Bryan, 75 Ga. 392 (3); Benton v. Singleton, 114 Ga. 548; Tompkins v. Female College, 30 Ga. 485; Hobby v. Alford, 73 Ga. 791; Shipp v. Gibbs, 88 Ga. 184; Small v. Cohen, 102 Ga. 248.