Burnett v. Atlantic Coast Line R. Co.

• Decision Date: 24 September 1913
• Citation: 79 S.E. 414,163 N.C. 186
• Parties: BURNETT v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

79 S.E. 414

163 N.C. 186

BURNETT v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

September 24, 1913

Appeal from Superior Court, Edgecombe County; Cline, Judge.

Action by General Burnett against the Atlantic Coast Line Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action to recover damages for personal injury caused by the negligence of the defendant, and the only defense relied on is that the plaintiff has since his injury accepted benefits from the relief department. No statute of limitations has been pleaded; but it is admitted that this action was commenced more than two years after the injury. It was further admitted that the complaint alleges a cause of action under the federal Employer's Liability Act, and that that act is applicable to this case; the point in controversy being whether section 6 of the act is a condition imposed upon the right of action or a statute of limitation.

The facts are set out in the judgment appealed from, except it is inadvertently stated therein that an issue of negligence was submitted to the jury, when the pleadings show that negligence was not denied, and the only controverted fact was the amount of damages.

The judgment is as follows:

"This cause came on originally to be heard before his honor, Geo W. Ward, judge, and a jury, at the -- term, 1911, of Edgecombe Superior Court. At that time the question of whether or not the plaintiff was injured by the negligence of the defendant, and, if so, the amount of damage sustained by him was submitted to the jury, and the jury found the issue of negligence in favor of the plaintiff and fixed his damages at $1,000. No judgment was rendered upon the verdict; but by agreement the matter was left open to be further heard, and judgment signed at some subsequent term of court nunc pro tunc. The reason for deferring judgment (as stated to the judge rendering this judgment) was that at said former term one or more cases were pending in the Supreme Court of North Carolina, the decision of which would aid the lower court in a determination of the case at bar.

"The plaintiff Burnett insisted that, admitting the facts set out in the defendant's further answer, he was nevertheless entitled to judgment; the defendant insisting that, taking the facts stated therein to be true, it was entitled to judgment that it go hence without day, etc. Thereupon it was agreed that the facts set forth in the further answer by the defendant were true; but the conclusions of law therein were not admitted by the plaintiff. The plaintiff further contended that the contract called the relief department was invalid as matter of law, and Judge Ward made an entry on his notes of this admission and contention. It was further understood and agreed between the parties that the expression in paragraph 3 of the further answer, 'that the plaintiff did solemnly make and execute his said election, and did receive and accept under said regulations an aggregate sum of $97,' should only be taken as a statement of fact to mean that he did receive checks or drafts aggregating $97 from the relief fund, under the terms of his membership in said relief department, and cashed and used them.

"The cause was placed upon the motion docket at the March term, 1913, and came on to be heard before his honor, E. B. Cline, judge presiding, upon motion of both plaintiff and defendant for judgment in favor of each, respectively. It was agreed that, if the facts stated in the further answer in regard to the relief department, and the things done in connection therewith, or not done, by both parties were not a bar to recovery by plaintiff in this case, then the court was to render judgment in his favor for $1,000 and costs; but if they constituted a bar to a recovery by him, then the judgment was to be rendered in favor of the defendant.

"The court did not understand that the verdict of the jury was to determine the matter other than to find the negligent act and the amount of damages, if any were recoverable. Upon the argument before the undersigned, the plaintiff insisted upon the rendition of a judgment in his favor both under the acts of Congress as well as under the state law. The defendant insisted that the federal statutes were not applicable, and that it was entitled to judgment under the decision of King v. Railroad, 157 N.C. 44, 72 S.E. 801, and other decided cases.

"Treating the facts set forth in the further answer as true, except as qualified above, and which are made a part of this judgment as fully as though they were set forth herein, the court, upon consideration of federal statutes, the decision of the Supreme Court of the United States in the case of Philadelphia, Baltimore & Washington R. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911, and other cases, is of the opinion that they cannot aid the plaintiff to a recovery.

"As the court understands the application of the decision in King v. Railroad, supra, to this case, the plaintiff, under the facts appearing in the further answer, is estopped and precluded from a recovery against the defendant in this action.

"It is therefore considered and adjudged that the plaintiff is not entitled to recover, that he take nothing by his writ, and that the defendant go hence without day.

"E. B. Cline, Judge Presiding."

The plaintiff excepted and appealed.

G. M. T. Fountain & Son, of Tarboro, for appellant.

F. S. Spruill, of Rocky Mount, for appellee.

ALLEN J.

It is settled beyond controversy by the decisions of the Supreme Court of the United States that the acceptance of benefits from a relief department does not prevent a recovery of damages for negligence under the Employer's Liability Act of 1908 (Chicago R. R. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328; Railroad v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911), and, as it is admitted that the act is applicable to this case, the only question presented by the appeal is the construction of section 6 thereof, which reads as follows: "That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued."

If this is a statute of limitation, the defendant cannot avail itself of its protection, because of its failure to plead the statute, which is required both under our Revisal, § 360, and under the general law (1 Wood on Limitations, § 7), and, on the other hand, if it is a condition inherent in and annexed to the right of action, the defendant was not required to plead it, and it would operate to defeat the plaintiff's action, which was commenced more than two years after the cause of action accrued.

The last principle is illustrated by the decisions in this state and elsewhere, under Lord Campbell's Act creating a right of action for wrongful death, and is the one invoked by the defendant.

It is true it has been generally held by the courts that, where a statute creates a right not known to the common law, and provides a remedy for its enforcement, and limits the time within which the remedy...