Opinion
35044.
DECIDED APRIL 7, 1954. REHEARING DENIED APRIL 23, 1954.
Action for damages. Before Judge Pharr. Fulton Superior Court. November 25, 1953.
William A. Thomas, for plaintiff in error.
Marshall, Greene, Baird Neely, Moise, Post Gardner, contra.
In an action for personal injuries based upon alleged negligence of the defendant, the statute of limitations commences to run from the breach of duty, and not from the time when the extent of the resulting injury is ascertained.
DECIDED APRIL 7, 1954 — REHEARING DENIED APRIL 23, 1954.
This case is here because of alleged error in sustaining the general demurrer filed by Southern Gas Corporation (hereinafter called the defendant) to a petition of Mrs. J. J. Brewer (hereinafter called the plaintiff), alleging damage by reason of the negligence of the defendant. The bill of exceptions sets forth clearly the question to be determined by this court. We think it expedient to quote the bill of exceptions rather than the pleadings referred to therein. The bill of exceptions, omitting the specifications of the record, reads: "Be it remembered that, on the 9th of September, 1953, Mrs. J. J. Brewer filed her suit alleging negligence and personal injuries, as set forth in the unamended petition, against Southern Gas Corporation and Atlanta Gas Light Company, returnable to the November-December term of Fulton Superior Court. On the 9th of October defendant Atlanta Gas Light Company filed its demurrers, which have never been heard, and an answer. On the 12th of October, 1953, defendant Southern Gas Corporation filed its demurrer and an answer. On the 25th of November, 1953, the case was set down regularly on the non-jury calendar for hearing on demurrers as to both defendants named in the case, and, just before the beginning of the hearing defendant Atlanta Gas Light Company filed another demurrer, and, as to this defendant the plaintiff moved for a continuance to be able to study the said new demurrer. On the 25th of November, 1953, the court heard argument only on paragraph thirteen (13) of the demurrer of defendant Southern Gas Corporation, which said paragraph 13 was as follows: `13. This defendant generally demurs to said petition upon the ground that it appears on the face of said petition that any cause of action which plaintiff has against this defendant by reason of the allegations contained in said petition is barred by the statute of limitations which requires that any action for personal injuries be brought within two years from the time the cause of action accrues.' And, after argument of counsel for plaintiff and this defendant, and without considering any other part of the demurrer, except said paragraph 13, the court then and there on said November 25, 1953, issued an order dismissing the petition of plaintiff as against Southern Gas Corporation, to which judgment of the court plaintiff then and there excepted, now excepts and assigns the same as error and prejudicial and hurtful to her and contrary to law, and as to Southern Gas Corporation an illegal termination of the case. Plaintiff Mrs. J. J. Brewer names herself herein as plaintiff in error; and likewise names defendants Southern Gas Corporation and Atlanta Gas Light Company as defendants in error herein."
1. Code § 3-1004 provides: "Actions for injuries to the person shall be brought within two years after the right of action accrues. . ." This court held in Dowling v. Lester, 74 Ga. App. 290 (2) ( 39 S.E.2d 576): "In an action for personal injuries based upon alleged negligence of the defendant in serving food with a rock or other similar substance therein, the statute of limitations commences to run from the breach of duty, and not from the time when the extent of the resulting injury is ascertained."
See, to the same effect, Silvertooth v. Shallenberger, 49 Ga. App. 133 (2) ( 174 S.E. 365), and Gould v. Palmer, 96 Ga. 798 ( 22 S.E. 583). On these authorities the court correctly dismissed the petition on demurrer. Counsel for the plaintiff in the brief and argument call our attention to no decision or authorities to sustain his contention that the sustaining of the demurrer was error.
Judgment affirmed. Townsend and Carlisle, JJ., concur.