Kelly v. Shropshire

Though it be conceded, in deference to the arguments for appellee, that his complaint is in tort, his action, according to the uncontradicted evidence, was barred by the statute of limitations, and appellants should have had the general affirmative charge which the .record shows they requested in writing. _

(1, 3) Neither in the pleadings nor in the evidence was anything said of fraud to bring the case within the influence of section 4852 of. the Code, which provides for actions seeking relief on the ground of fraud a peculiar limitation which begins to run from the discovery of the fraud. That suggestion is found only in the brief of counsel where it takes the form of a statement that in the case of a fiduciary relation between the parties the omission to disclose what it was the duty of the defendants to disclose is a fraudulent concealment which will postpone the running of the statute. Appellee had a contract with appellants by which the latter, who were civil engineers, undertook to lay off a tract of land into lots and make a plat or map of it for appellee. It is alleged only that they did this negligently, and negligently certified an inaccurate plat or map. To say that appellants were fiduciary agents of appellee would push the doctrine of fiduciary relations entirely too far. It would involve every agent in all the implications of trust, and it has never been supposed that ordinary agents could be so held. In short, the theory of trust as a foundation for a charge on the facts of this case is fanciful, and there is nothing to indicate that it had consideration in the trial court. Besides, there was no pleading that raised this question.

We think the rule as to the statute of limitations applicable to this case is soundly stated in 25 Cyc. 1136, in the following language: “If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, *605the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage [then apparrent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiff’s ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.”

This is the rule of our cases.—Mardis v. Shackleford, 4 Ala. 493; Governor v. Gordon, 15 Ala. 72; Snedicor v. Davis, 17 Ala. 472; McCalla v. L. & N. R. R. Co., 163 Ala. 107, 50 South. 971.

There is a class of cases in which a different statement of the rule is necessary, though the basic principle is the same. They are cases in which the act complained of does not itself constitute a legal injury; that is, an injury giving rise to a cause of action because it is an invasion of some legal right. In such cases plaintiff’s injury, the invasion of his rights, depends upon a further and subsequent development of what defendant has done, and the cause of action accrues and the statute begins to'run when, and only when, the damages are sustained. This rule is illustrated in the case of West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 South. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750, and in the cases to which reference is there made. In the case here it hardly admits of doubt that a cause of action accrued to plaintiff when defendants had completed their work and received payment for it. Then his right was invaded. Then the statute began to run. As the Supreme Court of New York said in an old case involving this same question: “The plaintiff’s case may be a very hard one; but that affords no reason for construing away a statute of great public benefit, and which, in many cases, is a shield against antiquated and stale demands.”—Troup v. Smith, 20 Johns. (N. Y.) 33.

It follows that appellants should have had the general affirmative charge which they requested.

(4) Appellee notes the fact that the bill of exceptions does not purport to set out all the evidence, and invokes the rule that this court will in such cases generally presume any state of the evidence to support the ruling of the trial court. That rule cannot be applied to this case, for here, while the bill does not pur*606port to contain all the evidence, it does state that its recited facts are shown by the evidence without contradiction, and it is entirely clear that the bill was prepared with a view to raising as on undisputed facts the sole question of law which has been discussed. In this state of the case, to presume a state of the evidence which would raise a contradiction would itself involve the court in a contradiction of the record.—Baker v. Patterson, 171 Ala. 88, 55 South. 135.

Reversed and remanded.