American R. Co. of Porto Rico v. Coronas

• Decision Date: 01 March 1916
• Docket Number: 1125.
• Citation: 230 F. 545
• Parties: AMERICAN R. CO. OF PORTO RICO v. CORONAS.
• Court: U.S. Court of Appeals — First Circuit

230 F. 545

AMERICAN R. CO. OF PORTO RICO v. CORONAS.

No. 1125.

United States Court of Appeals, First Circuit.

March 1, 1916

Francis H. Dexter, of San Juan, Porto Rico, and Joseph B. Jacobs and Jacobs & Jacobs, all of Boston, Mass., for plaintiff in error.

Jose A Poventud, of Ponce, Porto Rico, for defendant in error.

Before DODGE and BINGHAM, Circuit Judges, and ALDRICH, District Judge.

BINGHAM Circuit Judge.

This is an action under the federal Employers' Liability Act of April 22, 1908 (35 Stat. 65, c. 149 (Comp. St. 1913, Secs 8657-8665)), brought by Amador Riera Coronas, administrator of the estate of Pedro Didricksen, against the American Railroad Company, in the District Court of the United States for Porto Rico, to recover damages resulting from the death of his intestate, who died on the 8th day of December, 1908 because of injuries which he sustained on the 30th of the preceding November, while employed by the defendant in switching and coupling cars on its railroad. Letters of administration were granted the plaintiff on the 12th of May 1914, and this action was brought the 17th of December, 1914. There was a trial by jury and a verdict for the plaintiff.

The case is here on defendant's bill of exceptions, and the errors assigned are: (1) To the overruling of a demurrer to the declaration, setting forth that the action was barred, in that it was not brought within the two years' limitation of section 6 of the act; and (2) that there was no evidence from which the jury could find that the beneficiaries, the father and mother of the deceased, had suffered any pecuniary loss by his death.

The substantial question in the case is raised by the first assignment of error. The defendant says that the action cannot be maintained for the reason that it was not brought within two years from the death. The plaintiff's contention is that the limitation provided for in the statute does not run from the death, but from the appointment of the administrator.

Section 6 provides:

'That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.'

And the question is whether the action accrued so that the statute began to run from the death or from the appointment of the administrator, when there was some one in existence who could enforce the liability.

The cause of action here provided for was unknown to the common law. The statute gives a new right for the benefit of certain dependent relatives, to recover the pecuniary loss and damage which they sustained by reason of the death. Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 69, 70, 33 Sup.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; Winfree v. Northern Pacific Ry. Co., 227 U.S. 296, 33 Sup.Ct. 273, 57 L.Ed. 518; American R.R. Co. v. Didricksen, 227 U.S. 145, 149, 33 Sup.Ct. 224, 57 L.Ed. 456; Taylor v. Taylor, 232 U.S. 363, 370, 34 Sup.Ct. 350, 58 L.Ed. 638. It provides in terms that the suit shall be brought by the personal representative, and it has been held that the beneficiaries named in the statute, who suffer pecuniary loss, cannot maintain the action. American R.R. Co. v. Birch, 224 U.S. 547, 557, 32 Supo.Ct. 603, 56 L.Ed. 879; Missouri & Kansas Ry. Co. v. Wulf, 226 U.S. 570, 576, 33 Sup.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134; St. Louis, S.F. & Texas Ry. v. Seale, 229 U.S. 156, 162, 33 Sup.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156. The right granted exists only by virtue of the statute, and its scope and effect must be determined therefrom. The language of the act makes it plain that the right and correlative liability thereby established are conditional upon the bringing of the suit within two years from the day the cause of action accrued. The bringing of the action, therefore, within the specified time, is a condition to the exercise of the right, and, if the condition is not complied with, the parties stand, with respect to the wrongful act, as though the statute had not been enacted. The limitation relates, not merely to the remedy, but to the right. Central Vermont Ry. Co. v. White, 238 U.S. 507, 511, 35 Sup.Ct. 865, 59 L.Ed. 1433; Phillips v. Grand Trunk Ry., 236 U.S. 662, 666, 667, 35 Sup.Ct. 444, 59 L.Ed. 774. And it was incumbent upon the plaintiff to allege and prove that his cause of action was brought within the time limited.

The declaration discloses that the plaintiff was appointed administrator within two years prior to the bringing of the suit, but fails to show that he brought his action within two years from the death. If his right of action accrued at the time of the death, and not from his appointment, the declaration was demurrable. Atlantic Coast Line Railroad Co. v. General Burnette, 239 U.S. 199, 36 Sup.Ct. 75, 60 L.Ed. . . .; Davis v. Mills, 194 U.S. 451, 454, 24 Sup.Ct. 692, 48 L.Ed. 1067; The Harrisburg, 119 U.S. 199, 214, 7 Sup.Ct. 140, 30 L.Ed. 358; Boyd v. Clark (C.C.) 8 Fed. 849; Theroux v. Northern Pacific R. Co., 64 F. 84, 12 C.C.A. 52; Brothers, Administrator, v. Rutland R.R. Co., 71 Vt. 48, 42 A. 980; Seitter v. West Jersey & S.R. Co., 79 N.J.Law, 277, 75 A. 435; Lapsley v. Public Service Corporation, 75 N.J.Law 266, 68 A. 1113; Poff v. New England Telephone Co., 72 N.H. 164, 55 A. 891.

It is to be noted that the statute does not require that the action shall be brought within two years from the death, but within two years from the time the cause of action accrued. It is also to be noted that the action is not for the occurrence out of which the death arose, but for the pecuniary damage to the beneficiaries due to the death; so that, in no event, could the cause of action arise until after the death, or be said to exist so that the statute could run until after that time. We may therefore assume that the statute, so far as this cause of action is concerned, did not begin to run until after death had ensued.

It is a general rule of law that where a cause of action arises, as in this case, after death, it is considered as accruing, for the purpose of the running of the statute, only from the time when there is some one in existence capable of suing, and, if no one but the administrator can sue, that the statute does not begin to run until administration is granted. This principle was announced at an early day. The leading English case on the subject is Murray, Administrator, v. East India Co., 5 Barn. & Ald. 204, which has been very generally followed in this country. It was an action by an administrator with the will annexed upon a bill of exchange made payable to the testator, but accepted after his death. The acceptance of the bill and the day of payment were more than six years before suit was brought, but administration was first taken out less than six years before, and it was held that the statute of limitations began to run from the granting of the letters of administration, and not from the time the bill became due, as the cause of action did not accrue until there was a party capable of suing.

In Sanford v. Sanford, 62 N.Y. 553, 554, the court says:

'The term 'cause of action' includes, not only the right proper, but the existence of a person by or against whom process can issue. A cause of action cannot accrue or exist unless there is a person in esse against whom an action can be brought and the right of action enforced. It is well said that 'when there is no person to sue there can be no laches.' A case literally within the words of the statute is without its spirit when it is impossible to maintain a suit at law. Richards v. Maryland Ins. Co., 8 Cranch, 84 (3 L.Ed. 496). It is directly adjudged that the statute does not commence to run against the representatives of a deceased creditor upon an obligation incurred, or debt becoming due after his decease, until administration is granted upon his estate, there being no cause of action until there is a party capable of suing. Murray v. East India Co., 5 Barn. & Ald. 204; Bucklin v. Ford, 5 Barb.(N.Y.) 393; Cary v. Stephenson, 2 Salk. 421. In order to put the statute in motion there must not only be a person in esse to sue, but a person to be sued. Davis v. Garr, 6 N.Y. 124 (55 Am.Dec. 387); Levering v. Rittenhouse, 4 Whart.(Pa.) 130, per Nelson, J.; Wenman v. Mohawk Ins. Co., 13 Wend.(N.Y.) 267 (28 Am.Dec. 464); Jolliffe v. Pitt, 2 Vern. 694; Douglas v. Forrest, 4 Bing. 686; Benjamin v. De Groot, 1 Denio (N.Y.) 155.'

In Collier v. Goessling, 160 F. 604, 611, 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.(U.S.) 403, it was sought to defeat a contract claim against the government on the ground that it was barred by the statute. The act of Congress of March 3, 1863 (12 Stat. 765, c. 92 (Comp. St. 1913, Sec. 1147)), provided:

'That every claim against the United States, if 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 seems that the contractor died before the claim accrued, the services rendered having been completed June 1, 1861. The petition was not filed until March 13, 1873, but adminstration was granted December 19, 1870, and it was held:

'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. Secs. 54-63.

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