Louis Werner Sawmill Co. v. Dyer

WOOD, J., (after stating the facts). The appellee’s cause of action was barred bv the statute of limitations. (1-2) Section 5 of Act 175 of the Acts of 1913 is as follows: ‘£ That no action shal 1 be maintained under this act unless commenced within two years from the day the cause of action accrued. ’ ’ This is a part of the Employers ’ Liability Act, the first section of which provides: “That every corporation, except while engaged in interstate commerce, shall be liable in damages to any person suffering injury while he is employed by such corporation,” etc. The appellee contends that the statute of limitations was not pleaded, but the language above quoted from the answer was sufficient to advise the appellee that the appellant was relying upon the two years statute of limitations in bar of appellee’s cause of action. True the word “case” is used instead of the word “bar,” but the context shows that the use of the word “case” was a mere clerical misprision, and the plea should be read by substituting the word which the context shows was manifestly intended. The plea was sufficient on demurrer, and if appellee desired that the same be made more specific he should have called attention thereto by motion. The plea was sufficient to admit proof to show that the action was barred by limitations. The complaint itself showed that the suit was instituted on February 28, 1916,' and the undisputed evidence of the appellee showed that his injury occurred on the 13th day of January, 1914. Therefore, the evidence shows that, more than two years had elapsed between the time of the alleged injury and the institution of the suit. This proof was sufficient to warrant the appellant in presenting a prayer for instruction based upon the provision of the statute of limitations contained in the Employers’ Liability Act. The allegations of the complaint and the undisputed testimony were sufficient to show that the appellant corporation was not engaged in interstate commerce at the time the appellee received his injury, and the very language in which appellant’s prayer for instruction is couched also shows that the appellant was relying upon the limitation contained in the above statute, because that is the only statute which prescribes a limitation of two years after the accrual of a cause of action for the bringing of such suits. It is impossible to escape the conclusion, when the record as a whole is considered, that the appellee based his cause of action upon the Employers’ Liability Act, and that the appellant invoked and was relying upon the statute of limitations contained in that act as a bar to the appellee’s right to sue. (3) The appellee further contends that he had a right to maintain the suit under the provisions of act 364 of the Acts of 1917, volume 2, page 1789, the first section of which is as follows: “That section 5 of Act 175 of the Acts of 1913 be amended to read as follows: “That no action shall be maintained under this act unless commenced within three years- from the date the cause of action accrued, and this shall apply to all causes of action heretofore accrued if suit has been filed or shall he filed within three years from the date the cause of action accrued.” But this court, in the early case of Couch v. McKee, 6 Ark. 484, held that one could have a vested right in the defense of the statute of limitations of which he could not he deprived by subsequent legislation, and this holding was reiterated in the recent case of Rhodes v. Cannon, 112 Ark. 6. At the time o’f the passage of the act of 1917, supra, appellant’s defense to appellee’s cause of action, then pending, was complete. The bar of the statute of limitations under which that action was brought, and which was set up and pleaded as a defense to that action, was then a vested right of which appellant could not be deprived by the subsequent statute. (4-5) Appellee further contends that inasmuch as the appellant made no objection to the ruling of the court in granting appellee’s prayer numbered 1, that it waived its right to raise, and is estopped from raising the objection to the ruling of the court in refusing its prayer numbered 4. But the instructions must be taken as a whole, and as such the rulings of the court in passing upon the same must be consistent. This court has held that a prayer for an instruction is tantamount to a specific objection to some other instructions given by the court with which the instruction prayed for is in conflict or which the instruction prayed for and refused was intended in lieu of or as a modification of or limitation upon. See Henry Wrape Co. v. Barrentine, 129 Ark. 111, 195 S. W. 27; also Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67. Under this rule, appellant’s prayer for instruction No. 4 must be taken as a specific objection to the ruling of the court in granting appellee’s prayer No. 1, unless the court also embodied in its charge appellant’s prayer No. 4. Appellant’s prayer No. 4 must be taken as a request on the part of the appellant that the same be granted and considered by the jury in connection with appellee’s prayer No. 1. Therefore, for the error in refusing to grant appellant’s prayer No. 4, the judgment is reversed, and the cause will be dismissed.