Cincinnati Street Ry Co. v. Whitehead

ROSS, J. 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 are known and the expense is 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, being now incorporated in the General Code as Sections 11224 and 11224-1. These sections read as follows: “Section 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.” “Section 11224-1. An action for bodily injury or injuring personal property shall *569 be brought within two years after the cause thereof arose.” The provision of limitation in §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 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 N. V. C. R. R., 122 Oh St, 43, 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 to be found in Hey v Prime, 197 Mass., 474, 17 L. R. A (N. S.), 570. In the opinion the court say: “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, N. H. & H. R. Co., 168 Mass., 308, 311, 38 L. R. A., 631, and 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 R. C. L., pp. 1418 and 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 cjamages 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 sued 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 Oh St, 306, p. 314; 50 Corpus Juris, 743, Vol. 1; Cooley’s Blackstone, 3d Éd., p. 328. "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 rights 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.” Sec. 32, 50 Corpus Juris, p. 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 coining 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.” Sec. 36, p. 760, Id. It may be said in passing that while a chose in action is personal property, *570 whether it arises ex contractu or ex delicto (Cincinnati v Hafer, 49 Oh St, 60, 65) 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 R. C. L., p. 63, Section 38: “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, evidence 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 §11224-1, GC, is broad enough to include the right of the husband to his wife’s services, but it' is obviously broad enough, if so construed, to include the rights set out in §11224, and if the term as used in §11224-1 is given such broad and technical construction, we will have a two and four year limitation covering the same actions. Paragraph 4, §11224 does not help us, for §11224-1 “hereinafter mentioned” if broadly construed would, as poihted out, include the rights specified in paragraphs 1, 2, and 3. But there is help in §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 the “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 section. 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 these contradictory, that the Ian-; guage will be constrúed if possible so as to give effect to both sections. We are of opinion that the Legislature, in §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, §11224, GC, is given full force and effect and applies to the instant case. The instant cause therefore not arising on contract, being an action in tort for negligent injury of the wife, consequently depriving 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 v^as filed in time. The judgment is affirmed. HAMILTON, J, concurs.