
    No. 343
    BOWMAN v. LEMON
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2695.
    Decided Jan. 11, 1926
    643. INSANITY — 1. Where an unsound mind is pleaded as a reason for not having brought action within statutory period, evidence must show that person was actually of unsound mind.
    2. A person is of unsound mind if the mind is inert, the memory unable to recall and the mind to retain in one view all the facts upon which the judgment is to be formed, for so long a time as may be required for their due consideration.
   CUSHING, J.

This action was filed by Wm. Bowman in the Hamilton Common Pleas in June 1922 alleging damages inflicted by Wm. Lemon in an assault and battery which occurred on Dec. 6, 1920. Lemon demurred on the ground that the action was barred by the statute of limitations.

The amended petition of Bowman alleged that he was of unsound mind for more than one year after the assault and battery was perpetrated, and that this action was commenced within one year of the removal of such disability. The Common Pleas court directed a verdict for Lemon because there was no evidence to prove that Bowman was of unsound mind. Bowman prosecuted error. The Court of Appeals held:

1. A person is of unsound mind if the mind is inert, the memory unable to recall, and the mind to retain in one view all the facts upon which the judgment is to be formed for so long a time as may be required for their due consideration.

Attorneys — Eckert, Cordes & Raidt and Margaret Hamilton for Bowman; Chas. H. Elston for Lemon; all of Cincinnati.

2. The record discloses that Bowman was a witness before the grand jury on March 31, 1921, and gave coherent testimony regarding the assault and battery.
3. There is no evidence in the record to show that he was of unsound mind, nor to show that he could discuss or had discussed this case or the assault and battery with a lawyer for the purpose of bringing action.
4. In view of these facts, the judgment of the trial court is affirmed.

Judgment affirmed.  