George v. C., M. & St. P. R. Co.

• Decision Date: 24 March 1881
• Citation: 8 N.W. 374,51 Wis. 603
• Court: Wisconsin Supreme Court
• Parties: GEORGE, ADM'R, ETC., v. C., M. & ST. P. R. CO.

51 Wis. 603

8 N.W. 374

GEORGE, ADM'R, ETC.,

v.C., M. & ST. P. R. CO.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Waukesha county.

The complaint alleges that on July 15, 1875, the servants of the defendant company negligently ran a train of cars over the plaintiff's intestate, Richard George, and killed him. Due appointment of the plaintiff as administrator of the estate of the deceased, on the fourth of October, 1879, is also alleged. The action was brought under the statute to recover damages for such killing. The defendant demurred to the complaint, alleging, as ground of demurrer, that it appeared on the face thereof that the action was not commenced within the time limited by law. The circuit court overruled the demurrer, and from the order in that behalf the defendant has appealed to this court.J. V. V. Platto, for respondent.

Melbert B. Cary, for appellant.

LYON, J.

This action was brought under the provisions of Rev. St. §§ 4255, 4256. The same statute stands in the Revision of 1858 as sections 12 and 13 of chapter 135. Section 13 contains the following proviso: “Every such action shall be commenced within two years after the death of such deceased person.” This limitation is incorporated in the present Revision in section 4224, § 3.

The action is purely statutory, and can only be maintained on the terms and conditions, and under the circumstances, specified in the statute. The limitation of two years therein prescribed is absolute and unconditional. Hence, the right of action for the alleged negligent killing of the plaintiff's intestate expired July 15, 1877. The action can no more be brought and maintained after that date than could such an action be maintained in the absence of any statute giving it. The action could not have been brought before the plaintiff was appointed administrator. It appears from the complaint that he was not appointed until more than four years had elapsed after the death of the intestate. It therefore appears on the face of the complaint that the limitation of the statute had run against the cause of action before the action was commenced. But it was argued that the question of limitation cannot be raised by demurrer. That proposition was ruled the other way in Howell v. Howell, 15 Wis. 55. It was there held that the defendant may avail himself of the statute of limitations, on demurrer to the complaint, if it appear on the face of it that the statute bar was...