Anderson v. Hygeia Hotel Co

• Decision Date: 19 March 1896
• Citation: 92 Va. 687,24 S.E. 269
• Parties: ANDERSON. v. HYGEIA HOTEL CO.
• Court: Virginia Supreme Court

24 S.E. 269

92 Va. 687

ANDERSON.

v.HYGEIA HOTEL CO.

Supreme Court of Appeals of Virginia.

March 19, 1896.

Limitations—Personal Injdry Actions—Judgment—Validity.

1. Under Code, § 2927, requiring personal actions which do not survive to be brought within one year from the date of their accrual, an action for injury to the person must be brought within one year from the date of the injury, though Id. §§ 2902, 2903, give the personal representative a right of action thereon, for the benefit of certain heirs, which does not abate on the death of the defendant, and Id. § 2906, provides that an action for injury shall not abate on death of the plaintiff, but may be revived in the name of his personal representative, by suggestion of the death and amendment of the pleadings to conform to sections 2902, 2903.

2. The validity of a judgment is to be determined by the laws in force when it is rendered, and is not affected by subsequent changes therein.

Error to circuit court of city of Elizabeth. Action by George P. Anderson against the Hygeia Hotel Company for personal in-juries. From a judgment for defendant, plaintiff brings error. Affirmed.

F. S. Hasseltine, Borland & Willcox, and Burroughs & Bro., for plaintiff in error.

Thos. Tabb, A. S. Segar, and Sharp & Hughes, for defendant in error.

RIELY, J. The plaintiff was injured by falling into an open pit filled with hot oil, which was on the premises of the defendant company, and brought suit to recover damages for the injuries he had sustained. The accident happened on January 12, 1892. The suit was not instituted until June, 1893. The defendant pleaded the statute of limitations. The plaintiff demurred to the plea, and the court overruled the demurrer and gave judgment for the defendant. The correctness of the ruling of the court depends upon the construction of section 2927 of the Code, which is as follows: "Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued." The determination of the question whether the limitation of five years or of one year applies in this case necessitates an inquiry as to what actions terminate with the life of the person. It was a rule of the common law that if an injury was done either to the person or the property of another, for which damages only could be recovered in satisfaction, the action therefor died with the person to whom or by whom the wrong was done. "In actions merely personal, " says Blackstone, "arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that 'actio personalis moritur cum persona, ' and it never shall be revived, either by or against the executors or other representatives." Book 3, p. 302. See. also, Broom, Leg. Max. 874; 1 Lomax, Ex'rs (2d Ed.) 470; and 4 Minor, Inst. pt. 1, 703. Certain innovations have, by degrees, been made by statutes upon this rule, which have considerably altered it. The statute of 4 Edw. III. c. 7, gave to executors an action for goods and chattels of their testators carried away in their lifetime; and this, being a remedial law, was liberally construed. The legislature of Virginia early repealed the English statutes, and enacted in their place a similar statute, to be found in 1 Rev. Code 1819, c. 104, § 64. And it is now provided that a personal representative may sue or be sued "for the taking or carrying away any goods, or the waste or destruction of, or damage to, any estate of or by his decedent." Code, § 2655. But while the rule of the common law has been much restricted and limited by statutes both in England and in this country, and the right to sue for an injury done to the property or estate of the decedent in his lifetime has been conferred on the personal representative of the deceased, the rule has not been altered in this state in respect of an injury done to the person. An action for an injury to the person still, as at common law, dies with the person, and no right of action for such injury survives to his personal representative. Therefore, for an injury to the person, the action must, under the provisions of section 2927 of the Code, be brought within one year from the time the right of action accrues, which is the time when the injury was sustained.

It is sought to take this case out of the rule of the common law by virtue of the provisions of sections 2902 and 2903 of the Code, whereby it. is provided that "whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, or to proceed in rem against said ship or vessel, or in personam against the owners thereof or those having control of her, " the person who, or corporation or ship which, would have been liable if death had not ensued, shall be liable to an action for damages, and that every such action shall be brought by and in the name of the personal representative of such deceased person, and within 12 months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, not exceeding $10,000, and may direct in what proportion they shall be distributed to the wife, husband, parent, and child of the deceased. It is further provided that the amount recovered shall, after the payment of costs and attorney's fees, be paid to the wife, husband, parent, and child of the deceased, in such proportion as the jury may have directed, or, if they have not directed, according to the statute of descents and distributions, and "shall be free from all debts and liabilities of the deceased, " except where there are no such kindred, in which case they shall become assets of the estate. It is further provided by section 2906 of the Code that "the right of action under sections 2902 and 2903 shall not determine, nor the action, when brought, abate by the death of the defendant, or the dissolution of the corporation when a corporation is the defendant; and, where an action is brought, by a party injured, for damage caused by the wrongful act, neglect, or default of any person or corporation and the party injured dies pending the action, and his death is caused by such wrongful act, neglect, or default, the action shall not abate by reason of his death, but, his death being suggested, it may be re-vived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections 2902 and 2903, and the case proceeded with as if the action had been brought under the said sections." It was claimed and earnestly contended in argument that the effect of these statutes is to cause the right of action for an injury to the person, which is produced by the wrongful act, neglect, or default of another, and death is the result of such injury, to survive, and to alter, in such case, the rule of the common law that an action for an injury to the person dies with the person, so that the limitation upon the right of action in the case at bar would be, under the provisions of section 2927, of the Code, five years, and not one year. This is, however, a mistaken view. No action at law being maintainable against a person who. by his wrongful act, neglect, or default, may have caused the death of another person, the British parliament, in 1846, passed what is commonly known as "Lord Campbell's Act, " which was entitled "An act for compensating the families of persons killed by accidents." The Virginia act (sections 2902-2906 of the Code) is modeled upon Lord Campbell's act. and, in its essential features, is substantially the same. The language of the act clearly indicates that the legislature had in view the rule of the common law, and that its purpose in passing the act was to provide for the case of an injured person who had a good cause of action, but died from injuries without having recovered his damages. It intended to withdraw from the wrongdoer the immunity from civil liability which the rule of the common...