Guinther v. Philadelphia & R. Ry. Co.

• Decision Date: 19 August 1924
• Docket Number: No. 3101.,3101.
• Parties: GUINTHER v. PHILADELPHIA & R. RY. CO.
• Court: U.S. Court of Appeals — Third Circuit

1 F.2d 85 (1924)

GUINTHER v. PHILADELPHIA & R. RY. CO.

No. 3101.

Circuit Court of Appeals, Third Circuit.

August 19, 1924.

Frederic B. Scott, of New York City, and John L. Ridley, of Jersey City, N. J., for plaintiff in error.

Katzenbach & Hunt, of Trenton, N. J. (Edgar W. Hunt, of Trenton, N. J., of counsel), for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and THOMPSON, District Judge.

DAVIS, Circuit Judge.

The plaintiff, administratrix of the estate of William Guinther, her deceased husband, brought suit under the federal Employers' Liability Act (35 Stat. 65 Comp. St. §§ 8657-8665) to recover damages for the death of her husband while he was employed by the defendant railroad company. It is admitted that both the decedent and the railroad company were engaged in interstate commerce at the time of the accident, which occurred August 1, 1916. The plaintiff was not appointed administratrix until September 21, 1922, and suit was instituted October 7, 1922. Section 6 of this act provides that: "No action shall be maintained under this act unless commenced within two years from the day the cause of the action accrued."

The above facts appeared in the pleadings, and defendant, contending that the action was not commenced within two years from the day the cause of action accrued, moved for judgment on the pleadings. The motion was granted and judgment entered. The plaintiff has brought the case here by writ of error to test the validity of the judgment thus entered.

The sole question is: What does the word "accrued" as used in this statute mean? Did the cause of action accrue when death occurred or when the administratrix was appointed? The statute created this new cause of action, unknown to the common law, for the benefit of certain dependent relatives. Michigan Central Railroad Co. v. Vreeland, 227 U. S. 59, 69, 70, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; American Railroad Co. of Porto Rico v. Didrickson, 227 U. S. 145, 149, 33 Sup. Ct. 224, 57 L. Ed. 456. The statute relates to both the right and remedy. Central Vermont Railway Co. v. White, 238 U. S. 507, 511, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252. While the action is for the pecuniary damage, to the beneficiaries named in the act, the suit can be maintained only by the personal representative. American Railroad Co. v. Birch, 224 U. S. 547, 557, 32 Sup. Ct. 603, 56 L. Ed. 879.

The phrase "cause of action" includes not only the right proper, but also the existence of a person by or against whom process can issue. Sanford v. Sanford, 62 N. Y. 553, 554. In the case of Collier v. Goessling, 160 Fed. 604, 87 C. C. A. 506, Judge Lurton, speaking for the Circuit Court of Appeals for the Sixth Circuit, said: "To start the running of a statute of limitation there must be some one capable of suing, some one subject to be sued, and a tribunal open for such suits."

In Fulenweider's Case, 9 Ct. Cl. 403, the work performed by the contractor was completed June 1, 1861. Administration was granted December 19, 1870, and petition was filed March 13, 1873. An act of Congress (Comp. St. § 1147) provided that: "Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement of the claim be filed in the court or transmitted to it under the provisions of this act within six years after the claim first accrues." It was contended that the cause of action "accrued" June, 1861, but the court said: "It is a well-settled rule that if, when the right of action would otherwise accrue and the statute of limitations begin to run, there is no person in existence who is qualified to sue upon that right, the statute does not begin to run till there is such a person. Angell on Lim. §§ 54-63. For this claim none but a personal representative * * * could sue, and there was no personal representative until December 19, 1870, when the statute began to run, less than three years before this suit was brought."

Section 2 of the Employers' Liability Act provides that every common carrier, in case of the death of an employee engaged in interstate commerce, is liable in damages to his personal representatives for the benefit of his surviving widow and children. It is evident that death liability, on which the present cause of action is based, could not arise until death, and further it is a general rule of law of long standing that when, by the express terms of a statute, the statute of limitations begins to run only from the time when a right of action accrues, the right of action does not accrue, so as to start the running of the statute, until there is in existence a party to sue or to be sued. Murray, Administrator, v. East India Co., 5 Barn. & Ald. 204; Pinckney et al. v. Burrage et al., 31 N. J. Law, 21; Wood on Limitations (4th Ed.) § 117, p. 612 et seq.; 17 R. C. L. 751; 25 Cyc. p. 1067, 3; Conwell's Administrator v. Morris' Administrator, 5 Har. (Del.) 299; Andrews v. Hartford & New Haven Railroad Co., 34 Conn. 57; Sherman v. Western...