Summary
In Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (Ohio, 1951), in which the plaintiff was injured while riding as a passenger on one of the defendant's buses, the statute was held to govern "all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort.
Summary of this case from Renfroe v. Eli Lilly & Co.Opinion
No. 32197
Decided March 7, 1951.
Limitation of actions — Statutory construction — Special provision controls over general — Action for damages for injury to person — Two-year limitation governs — Section 11224-1, General Code — Form of action immaterial — Passenger's action against common carrier — Based on implied contract for safe carriage — Section 11222, General Code, not controlling.
1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.
2. Section 11224-1, General Code, providing that an action for bodily injury shall be brought within two years after the cause thereof arose, governs all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed on the cause of action and the form in which the action is brought is immaterial.
3. Where a fare-paying passenger sustains bodily injury during his transportation by a common carrier of passengers and thereafter institutes an action against the carrier to recover damages for such injury and the results thereof based on a claimed breach of the implied contract for safe carriage, the two-year limitation for bringing an action prescribed by Section 11224-1, General Code, is controlling and not the six-year limitation contained in Section 11222, General Code, relating to an action on an implied contract.
APPEAL from the Court of Appeals for Lucas county.
On February 4, 1949, Christ Andrianos filed his petition in the Court of Common Pleas of Lucas County against the Community Traction Company, a corporation, engaged in business as a common carrier of passengers. Such petition alleged in substance that on the afternoon of November 5, 1945, plaintiff became a fare-paying passenger on one of defendant's buses; that as such bus was being operated northwesterly on Main street in the city of Toledo by one of defendant's employees it was, without the fault of any person other than such employee, driven into a pillar or stanchion of a viaduct, whereby plaintiff sustained certain described personal injuries.
Continuing, the petition alleged plaintiff entered the bus for the purpose of obtaining safe passage to the downtown area of Toledo, and that the defendant, in violation of its contract to provide plaintiff with such safe passage, breached the same in the manner set forth, by reason whereof plaintiff received the personal injuries above noted and was damaged to the extent of $30,000.
Defendant demurred to the petition on the ground "that it appears upon the face of the petition that the cause of action therein set forth did not accrue within two (2) years next prior to the commencement of this action." Such demurrer was sustained.
Later, by leave of court, plaintiff filed an amended petition, similar in content to the original petition, except that the amended petition contained two causes of action. In the first, plaintiff confined his claim for damages, in the sum of $20,000, to the monetary loss incurred by him with respect to his inability to earn a livelihood and to carry on his business and expressly waived all claims for damages resulting from bodily injuries and the expenses incurred as a result thereof. In his second cause of action, plaintiff specified the personal injuries claimed to have been sustained and asked damages therefor, together with hospital and medical expenses, in the sum of $10,000.
A demurrer was likewise filed to the amended petition on the same ground contained in the demurrer to the petition. Again, the Court of Common Pleas sustained the demurrer and dismissed the amended petition.
An appeal was thereupon perfected to the Court of Appeals, and that court reversed the judgment below and remanded the cause to the trial court for further proceedings. As disclosed by its opinion, the Court of Appeals took the position that where an action is grounded on a claimed breach of the implied contract of a common carrier safely to transport a passenger to his destination, the six-year limitation for bringing an action contained in Section 11222, General Code, applies, rather than the two-year limitation provided by Section 11224-1, General Code.
The cause is now in this court for disposal on its merits following the allowance of a motion to require the Court of Appeals to certify its record.
Messrs. Streicher, Gorman Barone, for appellee.
Messrs. Welles, Kelsey, Fuller, Harrington Seney and Mr. Henry W. Goranson, for appellant.
The sole question before the court on this appeal is whether Section 11222, General Code, with its six-year limitation for bringing an action, or Section 11224-1, General Code, with its two-year limitation, is applicable to plaintiff's action. If Section 11222, General Code, applies, the Court of Appeals was correct and its judgment should be affirmed; if the matter is governed by Section 11224-1, General Code, the judgment of the Court of Appeals should be reversed and that of the Court of Common Pleas affirmed.
So far as it is pertinent here, Section 11222, General Code, appearing in the chapter entitled "Limitation of Actions" and in existence for many years, recites:
"An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued."
Section 11224-1, General Code, found in the same chapter and effective in 1927, provides:
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
The rule prevailing in by far the larger number of jurisdictions is that where a statute, specific in terms, limits the time within which an action for "injuries to the person" or "bodily injury" may be brought, such statute governs all actions the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, and a general statute, limiting the time for bringing an action growing out of a contractual relationship, is without application. 34 American Jurisprudence, 84, Section 103. Compare 53 Corpus Juris Secundum, Limitations of Actions, 1042, Section 74. A collection of the cases on the subject may be found in 1 A.L.R., 1313, and 157 A.L.R., 763. Attention is also directed to the later cases of Vandevoir v. Southeastern Greyhound Lines (C.C.A. 7), 152 F.2d 150, certiorari denied, 327 U.S. 789, 90 L.Ed. 1016, 66 S.Ct. 811; Coates v. Milner Hotels, Inc., 311 Mich. 233, 18 N.W.2d 389; and Jones v. Boggs Buhl, Inc., 355 Pa. 242, 49 A.2d 379.
There are several persuasive reasons why Ohio should follow the majority rule. In this state, by virtue of Section 11238, General Code, there is but one form of action, known as a civil action. Moreover, Section 11224-1, General Code, is a special statute relating to a specific subject, viz., "an action for bodily injury," and the well established rule is that a special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable. Acme Engineering Co. v. Jones, Admr., 150 Ohio St. 423, 431, 83 N.E.2d 202, 206. See, also, 37 Ohio Jurisprudence, 409, Section 150.
It is plain from a reading of Section 11224-1, General Code, that it imposes the two-year period of limitation on the cause of action instead of annexing it to the form of action. That section is not confined to any particular type of injury, nor does it concern itself with the circumstances under which an injury was inflicted. On its face, it clearly covers all actions based on a claim respecting bodily injury.
Surely, the General Assembly did not intend to create different periods of limitation for the recovery of damages growing out of bodily injury, depending on the form of the action brought. No matter what form is adopted, the essence of the action is the wrongful injury, and that it arose from the breach of an express or implied contract is immaterial.
In other words, the term, "action," as used in Section 11224-1, General Code, refers to the nature or subject matter thereof and not to its form as a matter of remedial procedure. Whether the action is strictly in tort or for breach of contract, it is nonetheless an action to recover damages for bodily injury and is governed by the two-year limitation prescribed by Section 11224-1, General Code.
Because in Ohio we have but one form of action, designated a civil action, cases from other jurisdictions, the decisions in which turned upon a distinction in the form of action brought, are not pertinent. In those cases, the results depended on whether the suits were in reality tort or contract actions. As has already been pointed out, under the express wording of Section 11224-1, General Code, it makes no difference whether the action to recover damages for bodily injury is in theory ex contractu or ex delicto; nor does it matter that plaintiff may elect between the two types of action.
Furthermore, it may be assumed that the General Assembly was motivated by a cogent reason in limiting to two years the bringing of an action for bodily injury. This is not an unreasonably short time and in actions of this character the evidence, being usually wholly oral, is liable to be lost by the death or absence of witnesses, failure of memory and other causes. Lewis v. Pawnee Bill's Wild West Co., 6 Pennewill (Delaware), 316, 322, 66 A. 471, 474, 16 Ann. Cas., 903, 906; and Baltimore Ohio Rd. Co. v. Reed (C.C.A., 6), 223 F., 689, 694, certiorari denied, 239 U.S. 640, 60 L. Ed., 481, 36 S. Ct., 160.
There is no decision by this court touching the precise question raised in the case at bar. However, in Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am. St. Rep., 639, involving an action against a surgeon for malpractice, it was held, in effect, that although a contractual relationship exists between a doctor and his patient whereby the doctor is obliged to use reasonable care and skill in the treatment of the patient, a malpractice action by the patient against the doctor is not one on the contract, but rather one "to recover for breach of contract, for negligence in performance of the contract," and the one year limitation on actions for malpractice (now Section 11225, General Code) applies.
In the Gillette case, the court divided equally, not on the applicability of the one year statute of limitation for bringing an action for malpractice, but as to the date when the cause of action accrued and the limitation began to run.
Judge Davis remarked in his dissenting opinion:
"However, it seems to be a mere waste of time to discuss the question whether this action is ex contractu, quasi ex contractu, or ex delicto, for the statute provides that malpractice, whether it belongs to one or another of these classes, is barred in one year from the time the cause of action accrues." Compare Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238; 41 American Jurisprudence, 232, Section 122.
In conclusion, Section 11224-1, General Code, is complete in itself and suggests no legislative intent to distinguish between bodily injuries directly and forcibly caused under circumstances where no contractual relationship exists between or among the persons concerned and those resulting from a breach of contract. Until such time as the General Assembly sees fit to make such distinction by an enactment carrying appropriate language to accomplish that purpose, this court must accept and apply the statute as it exists, regardless of hardship to a particular litigant.
It is manifest from a perusal of the amended petition that this is an action for damages upon a claim for bodily injury. It was instituted after the expiration of two years from the date upon which liability arose, and it comes squarely within the two-year limitation prescribed by Section 11224-1, General Code.
Upon the basis of what has been said, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.