Dowell v. Cox
| Decision Date | 10 September 1908 |
| Citation | 108 Va. 460,62 S.E. 272 |
| Parties | DOWELL. v. COX. |
| Court | Virginia Supreme Court |
1. Limitation of Actions—Raising Defense —Demurrer.
Where a statute of limitations affects the right as well as remedy, and it appears of record that the period of limitations has expired, the defense may be raised by demurrer.
2. Death—What Law Governs.
Where the alleged wrongful death of plaintiff's decedent occurred while he was temporarily in North Carolina, the laws of that state relating to liability for wrongful death, certainly as to the extent of the remedy, controlled.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, § 12.]
3. Statutes—Foreign Laws—Pleading.
The statutes of a foreign state will not be judicially noticed, but if relied on must be pleaded and proved as other facts.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, § 380.]
4. Death—Statutes—Remedy—Enforcement —Time.
Revisal 1905, N. C., § 59, gives a right of action for death by wrongful act, and declares that the action must be brought within one year. Held, that the time within which the action must be brought was a part of the right created by the statute, and hence no action thereon could be maintained in Virginia after the expiration of the time so fixed.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, §§ 52, 53.]
Error to Circuit Court, Grayson County.
Action by one Dowell, as administrator of Grimsley Halsey, against Edward Cox. Judgment for defendant, and plaintiff brings error. Affirmed.
W. S. Poage and J. H. Rhudy, for plaintiff in error.
A. A. Campbell and R. L. Kirby, for defendant in error.
This action was brought, and an attachment issued and levied as ancillary thereto, for the purpose of recovering damages from the defendant, Edward Cox, for killing, as alleged, Grimsley Halsey, the plaintiff's intestate.
A general demurrer to the plaintiff's declaration was sustained, and the action dismissed, upon the ground that the alleged trespass, if committed at all, had not been committed within 12 months next preceding the institution of the action, and that the plaintiff's right to recover was therefore barred by the statute of limitations.
It was properly conceded at the bar of this court that the defense of the statute of limitations could be made in this case by demurrer. Wherever the statute affects the right as well as the remedy, and it appears of record that the period of limitation has expired, the defense can be made by demurrer. Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431.
In the case of Manuel, Adm'r, v. M. & W. Ry. Co., 99 Va. 188, 37 S. E. 957, this court held that, when the declaration in an action for death by wrongful act shows on its face that the death occurred more than 12 months before action brought, advantage may be taken of the limitation by demurrer. This conclusion was clearly because, in such cases, the limitation affects the right as well as the remedy.
The grievance here complained of is alleged to have been inflicted while the parties were temporarily absent from this state, and in the state of North Carolina. It is therefore properly conceded that the laws of North Carolina govern—certainly as to the extent of the remedy. Dennis v. Atlantic Coast Line R. Co., 70 S. C. 254, 49 S. E. 869, 106 Am. St. Rep. 746; Nelson v. C. & O. Ry. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583.
The statute of a foreign state being relied on as the ground of recovery in this case, it is necessary that such statute should be alleged in the declaration. The statutes of foreign states will not be judicially noticed, but are considered facts which must be pleaded and proved as any other facts. 20 Ency. Pl....
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Olawole v. Actionet, Inc.
...common law, the limitations specified in the statute operate as a substantive limit on the right to recover.") (citing Dowell v. Cox , 108 Va. 460, 62 S.E. 272 (1908) ). Thus, the Jones court held that a Florida statute of limitations requiring that "[a]n action for wrongful death ... be co......
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Hurd v. U.S.
...that where an injury is inflicted in a sister state, the laws of that state govern as to the extent of the remedy. See Dowell v. Cox, 108 Va. 460, 62 S.E. 272, 273 (1908) (citing Dennis v. Atlantic Coast Line R.R., 70 S.C. 254, 49 S.E. 869 (1904); Nelson's Adm'r v. Chesapeake & Ohio R.R. Co......
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...v. Simrall, 127 Ky. 55, 104 S. W. 1011, 31 Ky. Law Rep. 1269;Earnest v. St. L., M. & S. E. R. Co., 87 Ark. 65, 112 S. W. 141;Dowell v. Cox, 108 Va. 460, 62 S. E. 272;Kirton v. Atlantic Coast Line Co., 57 Fla. 79,49 South. 1024;Bretthauer v. Jacobson, 79 N. J. Law, 223, 75 Atl. 560;Louisvill......
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Overstreet v. Kentucky Cent. Life Ins. Co.
...limit on the right to recover. Continental Casualty Co. v. The Benny Skou, 200 F.2d 246, 248 (4th Cir.1952); Dowell v. Cox, 108 Va. 460, 465, 62 S.E. 272, 273 (1908). This distinction--often called that between a remedial or procedural statute of limitations and a substantive statute--is ea......