Athey v. Hunter

Me. Justice Boggs delivered the opinion of the Couet. Sec. 22, Chap. 83, R. S., entitled Limitation, provides: “ If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterward.” The cause of action was not the destruction of the building by the fire, and the consequent injury and damage to the owners, but the tort, crime, or wrongful act by which, as it is alleged, the fire was communicated to the building. In the absence of such wrongful act no cause of action existed, no matter how great the loss or damage occasioned by the fire. The replication avers the plaintiffs did not know until within five years last past, etc., that the fire was occasioned by an intentional act, tort or crime. Consequently they were without knowledge that a cause of action existed. If the defendants fraudulently concealed from the knowledge of the plaintiffs the fact that the fire was purposely communicated to the building, the statute of limitations, because of the saving provisions of section 22 thereof, did not begin to run until the plaintiffs discovered such to be the fact. The replication avers the defendants at the time of the fire, for the purpose of concealing the cause of action, went to and upon the premises, and came away therefrom in a secret and stealthy manner, and used divers precautions in hiding and secreting themselves until they had reached a considerable distance, etc. If these alleged acts were for the mere purpose of preventing identification of the persons who burned the building, they would offer no reason for interfering with the operation of the statute; but if they were for the purpose also of concealing the fact that fire was purposely communicated to the building, then the effect was to conceal the cause of action, and thereby stay the running of the statute. The replication avers the purpose was to conceal the cause of action; and while it may in that respect be subject to the criticism that it pleads a conclusion of law, yet the facts upon which the conclusion rests are set out, and no such specific objection was made, the demurrer being general. It was well said in Bartalott v. The International Bank, 14 Ill. App. 163, upon the authority of adjudged cases there cited: “ It is not essential the acts constituting the fraudulent concealment should be subsequent to the' accruing of the cause of action. They may be coincident with or prior to it, provided there is a relation of design and its consummation.” Mr. Justice Miller, in Bailey v. Glover, 21 Wall. (U. S.) 342, said: “ To hold that * * * by committing a fraud in a manner that it concealed itself until such time as the party committing it could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful.” The Supreme Court of Hew Hampshire, in Queenly v. Blackly, 63 N. H. 77, held the fraud by which a cause of action is concealed need not be other than that which caused the original injury; also Way v. Cutting, 8 N. H. 187, is to same effect. The replication avers the exercise of diligence upon the part of appellants to discover whether of not they had a cause of action, and as has been indicated in our opinion, sufficiently shows that they did not know until within five years before the institution of the action they had a cause of action, and that fact was kept from their knowledge by the wrongful and fraudulent acts of the defendants. In the opinion of the majority of the court the demurrer should have been overruled. The judgment is reversed and the cause remanded, with directions to the Circuit Court to overrule the demurrer and require the defendants to plead to the replication. Be-versed and remanded.