Anthony v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 12 May 1913
• Parties: ANTHONY v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

157 S.W. 394

ANTHONY v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

May 12, 1913.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Action by Mrs. Irma Anthony, in her own name and as next friend of Victor Peterson and another, minors, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

On June 3, 1912, Mrs. Irma Anthony, in her own name, and as next friend to Victor Peterson and Roscoe Peterson, minors, instituted this action in the circuit court against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for injuries received by their father which resulted in his death. They allege that the plaintiff, Mrs. Irma Peterson Anthony, is only 21 years of age, and that Victor Peterson and Roscoe Peterson are minors. That their father, Andrew Peterson, in September, 1909, while in the employ of the defendant railway company was run over and killed by one of its trains and that said injury and death was caused by the negligence of the defendant's employés in the operation of said train. The defendant demurred to the complaint which was sustained by the court, and from the judgment rendered, the plaintiffs have duly prosecuted an appeal to this court.

Oscar H. Winn, of Little Rock, for appellant. E. B. Kinsworthy and T. D. Crawford, both of Little Rock, for appellee.

HART, J. (after stating the facts as above).

In the case of Earnest v. St. Louis, Memphis & Southeastern Railway Co., 87 Ark. 65, 112 S. W. 141, we held that by the common law the death of a human being could not be made the subject of a civil action, and that where a statutory right of action is given which did not exist at common law and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control. Mr. Tiffany says that, inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. Tiffany on Death by Wrongful Act (2d Ed.) § 121.

Section 6290 of Kirby's Digest, commonly known as Lord Campbell's Act, upon which the claim of the plaintiffs is based, contains the proviso "that every such action shall be commenced within two years after the death of such person." Inasmuch as the statute creates no saving clause for the benefit of persons under disability, the infancy of the plaintiffs at the time the cause of action accrued does not postpone the running of the statute. 13 Cyc. 340; Tiffany on Death by Wrongful Act (2d Ed.) §§ 121, 122. It follows that the bringing of the suit within two years from the death of the person whose death has been caused by the wrongful act is made an essential element of the right to sue. As said in the case of The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358: "The time within which a suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition to sue at all."

But counsel for plaintiffs claim that the proviso of section 6290, above quoted, is repealed by section 5075 of Kirby's Digest, which reads as follows: "If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed."

We cannot agree with his contention. Section 5075 of Kirby's Digest was passed April 17, 1899, and was entitled "An act to amend section 4833 of Sandel's and Hill's Digest," and is also a part of the chapter relating to the statute of limitations. In the case of Sims v. Cumby, 53 Ark. 418, 14 S. W. 623, it was held that the general saving clause in the act of December 14, 1844, in favor of infants and persons under disability was limited in terms to laws then in force and was inapplicable to statutes of limitations subsequently enacted. The act of April 17, 1899 (section...