
    Pannell v. Glidewell.
    
    (Division B.
    Feb. 28, 1927.)
    [111 So. 571.
    No. 26304.]
    1. Limitation op Actions. Dnsoumdnsss of mind, toiling statute of limitations, must exist at time cause of action accrued.
    
    Generally, disability oí unsoundness of mind, to delay running of statute of limitations, must have existed at time at which cause of action accrued.
    2. Time. Personal injury, and unsoundness of mind therefrom, are treated as simultaneous in determining limitation under rule concerning fraction of day.
    
    Where personal injury, caused by actionable negligence of another, resulted in unsoundness of mind, occurring on same day, the two events are to be treated- as simultaneous in determining whether action is barred by limitations, since the law will not take notice of fractions of a day.
    3. Time. “Day” is space of time elapsing betioeen two successive midnights.
    
    A. “day” is that space of time which elapses between two successive midnights.
    
      4. Tiwal. Instruction in action for damages for assault and battery, mm%f %M¥lmitiumWls. 1houcJl1 erroneous, held harmless,
    
    Infcfi£?f8n0^n°l?MloáwfáPWSfil§es £or assault and battery, although Inlfi-B&®flsi?na®i?níffig(i^¥%íf>1t&I?aatóáRík^tMl>^^u%1í MSSftomdilba^WiSfl#%tíÍ'e&Í1nálltónagfiadffifi«-Wlteigí HlHtffctfiBík ^Fñ>nÍejí5r^í§ddlMiii?MeS^eM-ffl1ls|u,iFt. °tber instructions requiring jury to determine .defendant’s guilt.
    5. Time. If unsoundness of mind) of ot],e suing for damages for as-5■ Tlmit WniWñWWgSíi m0eoUmhmmf^aiWi^%rtrlMi ÍÍ8'SM>n§e^Ú'tñ0Í,Í^l^iWÍ^ removal of disability (Hemingway's
    
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some hours thereafter, of sound mind. But the evidence tended to show that, before the end of the day on which the injury occurred, appellee’s mind became unsound. Appellant, in his argument, emphasizes the language of the statute. He insists that the statute is not open to construction; that it simply provides that the disability of unsoundness of mind must have existed “at the time at which the cause of action accrued.” Appellant cites authorities to sustain that position. An no doubt that is the general rule, especially under statutes like ours. On the other hand, appellee contends that there was such a short space of time between the alleged assault and battery and the beginning of appellee’s unsoundness of mind — less than a day — that the law will not take notice of so short a space of time; that therefore the law will look upon appellee’s unsoundness of mind as existing at the time of the alleged assault and battery. We agree with that contention. Where a personal injury is caused by the actionable negligence of another resulting in unsoundness of mind occurring on the same day, the two events are to be treated as simultaneous. The law will not take notice of fractions of a day. 17 R. C. L. 877, section 233; Nebola v. Minnesota Iron Co., 102 Minn. 89, 112 N. W. 880, 12 Ann. Cas. 56. We think this, a sound and wholesome rule. A day is that space of time which elapses between two successive midnights. 2 Blackstone’s Commentaries, 141; Kane v. Commonwealth, 89 Pa. 522, 33 Am. Rep. 787. As a general rule there are no fractions of a day in law. Where a cause of action accrues, although the injured person be of sound mind at the time, if before the expiration of the day of the injury his mind has become unsound, the space of time intervening- is so short as not to afford the injured person sufficient time to understand and bring an action for the redress of his injury.

Appellant complains at the action of the court in giving the two instructions granted appellee. By the first instruction the court told the jury that there were two issues of fact to be determined by tbe jury: (1) Whether appellee, after he was assaulted by appellant, was mentally incapacitated to understand his rights growing out of the assault for a period of ten months; and (2) whether the assault made by appellant was unlawful, willful, and not in necessary self-defense. Appellant criticizes this instruction because it assumed as a fact that appellant was guilty of the assault and battery of which he was charged. We think that criticism is well founded, but that it was cured and rendered harmless by other instructions given the jury, in which the jury were told that one of the questions they had to decide was whether appellant was guilty of the assault and battery upon ap-pellee of which he was charged.

We are of opinion, however, that the instruction is erroneous and was calculated to mislead the jury in this: By it the jury were told, in substance, that if, after ap-pellee was assaulted by appellant, the former became mentally incapacitated to comprehend his rights growing out of such assault for a. period of ten months, then they should find for the appellee, provided the assault and battery was committed by the appellant willfully and not in necessary self-defense. The trouble with the instruction is that it told the jury that if, after the expiration of any space of time after the alleged assault and battery the appellee became mentally unsound, then the one-year statute of limitations was not set in motion. As we have held, that is not the law. If appellee’s unsoundness of mind began after the expiration of the day on which he was injured, the statute of limitations was set in motion, and his cause was barred. On the other hand, if appellee’s unsoundness of mind began before the expiration of the day on which he was injured then the. statute was not set in motion until such disability was. removed. If the jury had beeai properly instructed in this respect they might have found under the evidence that appellee’s unsoundness of mind began after the expiration of the day on which he was injured,  