Keating v. Michigan Central Railroad ( 1892 )

Long, J.

This is an action for negligent injuries.. Dpon the stipulated facts, the trial court directed the verdict in favor of the defendant.

It appears that the injury occurred on July 13, 1876,. when plaintiff was seven years old. On March 16, 1877,. his father was appointed as next friend in a suit then¡ about to be brought in the Ingham circuit court against, the defendant for such injuries. The order appointing the: father next friend was made by one of the circuit court •commissioners of that county. Suit was brought against the defendant company on that date by the plaintiff, by his next friend, for the injuries complained of in the •declaration in this suit. That suit, on March 7, 1878, was brought on for trial, and, after the evidence on the part •of the plaintiff was put in, he submitted to a nonsuit, with leave to move to set the same aside. In December, 1882, an order was entered discontinuing the suit. August :25, 1883, suit was again brought by the plaintiff, by his next friend, in the same court, for the same cause of action, ;and that suit discontinued, December 27, 18.90. The pres•ent suit was brought within one year after the plaintiff became of age. Defendant pleads the statute of limitations.

How. Stat. § 8713, provides that—

“The following actions shall be commenced within six years next after the cause of action shall accrue, and not .afterwards, that is to say: * * * * * * *

“ 7. All actions on the case,” etc.

It is provided by section 8718, in the same chapter, as follows:

“ If any person entitled to bring any of the actions mentioned in this chapter shall, at the time when the cause of .action accrues, be' within the age of twenty-one years, insane, or imprisoned in the State prison, or absent from the United States and from the British provinces •of North America, such person may bring the action within the times in this chajrier respectively limited after •the disability shall be removed,” etc.

It is contended by defendant’s counsel that the term ■■“disability,” used in .this statute, means the disability to bring suit, and that, when the right to bring suit begins, -the disability is removed; that infancy is not a disability, but an infant may be disabled from bringing suit; and that, -when a guardian is appointed, the disability is removed, as then the infant is in a-position to bring and maintain his; suit, and consequently then the statute begins to run. It is further contended that, if this position is not well taken,, when the guardian actually brings suit the statute begins: to run from the date the suit is commenced.

We cannot agree with this contention. It is evident, that the disability mentioned in the statute can have no-other meaning than the infancy of the party, and it is not. removed until the full period of his nonage shall elapse. The rule is well stated in Wood on Limitations (section 238) as follows:

“ Persons who have not attained the age of majority are-infants, and, in those states where infancy is within the-saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a. guardian who might sue the claim in question, nor even though other persons are jointly interested in the claim who are of full age, until he or she attains the age of majority. The fact that a guardian or the infant himself brings a suit before the disability is removed does not operate as a waiver of the saving clause in favor of the disability.-”

This rule is supported by Kuchenbeiser v. Beckert, 41 Ill. 179; Frost v. Railroad Co., 64 N. H. 220 (9 Atl. Rep. 790); Pierce v. Dustin, 24 Id. 417; Grimsby v. Hudnell, 76 Ga. 378; Bacon v. Gray, 23 Miss. 143; Jackson v. Ransom, 10 Johns. 408; Chandler v. Vilett, 2 Saund. 120; Seward v. Clark, 67 Ind. 300; Wright v. Miller, 1 Sandf. Ch. 103. Under these authorities it is well settled that, the disability of the plaintiff is not removed until he attains-his majority.

The fact that suit was actually commenced in the name-of the infant, by his next friend, did not set the statute-in motion, so that any lapse of time would bar it short of the time fixed by the statute, which is six years after his. majority.

The court below was in error.

Judgment must be reversed, with costs, and a new trial ordered.

The other Justices concurred.