Hemphill v. Congoleum Corp.

Shulman, Judge. On November 23, 1976, appellant sued appellees for dog bite injuries which he alleged occurred on or about December 12, 1972. Appellees filed answers raising the issue of the statute of limitation. Appellee, Congoleum Corporation, moved to dismiss the complaint on the ground that it showed on its face that it was barred by the statute of limitation. Appellees, Ryder and Impson, filed motions for judgment on the pleadings based on the same issue. The trial court granted both motions, from which ruling appellant now appeals. 1. Appellant’s action is one for personal injuries and carries a two-year statute of limitation. Code Ann. § 3-1004. The valiant efforts of counsel for appellant to inject contentions of damages other than personal injuries are unavailing. This case is clearly controlled by the decisions in Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761 (227 SE2d 397), and Stoddard v. Woods, 138 Ga. App. 770 (227 SE2d 403). 2. Appellant further contends that the motion for judgment on the pleadings and the motion to dismiss are not the proper pleading vehicles to raise the issue of the statute of limitation in this case. We do not agree. Affirmative defenses such as the statute of limitation must be specially pleaded. Code Ann. § 81A-108 (c). It is of little importance what technical designation is given to a motion challenging a pleading as long as the matter required by such Code section is in fact affirmatively set forth. Leggett v. Benton Bros. Drayage &c. Co., supra, at p. 767. In the case sub judice the obvious bar of the statute of limitation appears on the face of the complaint and is susceptible to appellees’ motions. Judgment affirmed. Quillian, P. J., and Banke, J., concur. Submitted April 11, 1977 Decided April 21, 1977. James A. Satcher, Jr., for appellant. Akin & Akin, W. Morgan Akin, Nall, Miller & Cadenhead, Robert B. Hocutt, for appellees.