VON COLLN v. PENNA. R. R. CO., 367 Pa. 232 (1951)

80 A.2d 83

Von Colln, Appellant, v. Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.Argued November 16, 1950
Decided April 17, 1951

Limitations of action — Personal injuries — Actions by minors — Act of June 24, 1895, P. L. 236.

Section 2 of the Act of June 24, 1895, P. L. 236 (which provides that every suit to recover damages for injury not resulting in death must be brought within two years from the time of the injury) is applicable to a suit by a minor.

Before DREW, C. J., STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

Appeal, No. 252, Jan. T., 1950, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1949, No. 4060, in case of Barbara Von Colln et al. v. Pennsylvania Railroad Company. Judgment affirmed.

Trespass for personal injuries.

The facts are stated in the opinion, per curiam, of the court below as follows:

Plaintiff, Barbara Von Colln, a minor, by her guardian, Frank Robert Von Colln, brings this suit

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in trespass against the defendant, the Pennsylvania Railroad Company, for the wrongful injuries she alleged she sustained because of the defendant’s negligence. Her husband, who is also her guardian, is also plaintiff in the suit in his own right. In the plaintiffs’ complaint it is averred that the injuries were sustained on October 14, 1943. The suit was brought on July 28, 1949, which was more than five years, nine months after the time of the injuries upon which the cause of action arose. The defendant has filed an answer to the complaint with new matter in which new matter the defendant sets up as a defense to the action that the complaint shows that the cause of action occurred on October 14, 1943, more than two years prior to the institution of the suit and that it is therefore barred by the Act of June 24, 1895, P. L. 236, Sec. 2. The minor plaintiff has filed an answer to the new matter averring that at the time of the accident referred to in the complaint she was a minor fourteen years of age and that her guardian was the Church Home for Children and that she still is a minor and “under the guardianship of her husband.” Defendant has filed preliminary objections to the answer to new matter assigning as reasons therefor that the defendant in its answer to the plaintiffs’ complaint in new matter raised the defense of the Statute of Limitations of 1895, supra, and that the plaintiffs’ answer to the said new matter is insufficient as a matter of law to avoid the defense. Section 2 of the Act of June 24, 1895, supra, provides: “Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards: . . .”

In Peterson v. Ferry Co., 190 Pa. 364, the Supreme Court of this State held that the said “Act of June 24, 1895, P. L. 236, is a general act in the nature of a

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statute of limitations, and minors are bound by its provisions,” and that “its terms are general, and make no exceptions in favor of persons under disability. The settled rule is that infants as well as all others are bound by the provisions of such statutes. ‘A saving from the operation of statutes for disabilities must be expressed or it does not exist:’ Warfield v. Fox, 53 Pa. 382. ‘There is no limitation in the act which excludes persons under disabilities. “Any person” means every person. . . .’ ” To same effect, see Tocus v. D. H. Ry. Corp., 35 Luz. L. Reg. Rep. 169 (1942); see also Standard Penna. Practice, Section 160, and Lanning v. Penn Electric Light Company, 31 W. N.C. 251; Scavill v. R. R., 31 Lack. 83. We are therefore of the opinion that the plaintiffs’ action is barred by the said Act of 1895, supra, and the defendant’s preliminary objections are sustained and the plaintiffs’ complaint in trespass filed herein is dismissed.

Plaintiffs appealed.

David Freeman, for appellants.

F. Hastings Griffin, Jr., with him Theodore Voorhees an Barnes, Dechert, Price, Myers Clark, for appellee.

OPINION PER CURIAM, April 17, 1951:

Judgment affirmed on the Per Curiam opinion of the learned court below.