Anthony v. St. Louis, Iron Mountain & Southern Railway Co.

CourtSupreme Court of Arkansas
Writing for the CourtHART, J.
Citation157 S.W. 394,108 Ark. 219
PartiesANTHONY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
Decision Date12 May 1913

157 S.W. 394

108 Ark. 219

ANTHONY
v.
ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

May 12, 1913


Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge; affirmed.

STATEMENT BY THE COURT.

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, is only twenty-one 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 employees in the operation of said train.

The defendant demurred to the complaint, which demurrer was sustained by the court, and from the judgment rendered, the plaintiffs have duly prosecuted an appeal to this court.

Judgment affirmed.

Oscar H. Winn, for appellant.

The complaint alleges a cause of action ex contractu as well as ex delicto, and the cause of action is not barred. 35 Ark. 622; 50 Ark. 250; 62 Ark. 360; 67 Ark. 189; 68 Ark. 433; 63 Ark. 563; 71 Ark. 71.

E. B. Kinsworthy and T. D. Crawford, for appellee.

1. The cause of action is barred. Kirby's Dig., § 6290.

2. The question whether plaintiff failed to sue within the time prescribed by the statute, could be raised by demurrer. 25 Cyc. 1398; 13 Cyc. 340; 72 Miss. 886; 94 N.C. 525; 70 S.C. 254; 51 Wis. 603; 42 W.Va. 813; 154 F. 121; 119 U.S. 214; Tiffany, Death by Wrongful Act, § 121, and cases cited in note 3.

3. The general statute saving the rights of infants, Kirby's Dig., § 5075, is inapplicable in this case. 50 Ark. 132.

OPINION

[108 Ark. 221] HART, J., (after stating the facts).

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, (2 ed.), section 121.

Section 6290 of Kirby's Digest, commonly [157 S.W. 395] 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, (2 ed.)...

To continue reading

Request your trial
14 practice notes
  • Davidson v. State
    • United States
    • Supreme Court of Arkansas
    • 9 June 1913
    ...to a verdict at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant [108 Ark. 219] is obtained." It is thus seen that the presence of the defendant upon trial for a felony is mandatory, except that the Legislature has provided t......
  • Davis v. Chrisp, (No. 32.)
    • United States
    • Supreme Court of Arkansas
    • 11 June 1923
    ...may be commenced, it operates as a condition of liability thus created and not merely as a period of limitation. Anthony v. Railway Co., 108 Ark. 219, 157 S. W. 394; Partee v. Railroad Co., 204 Fed. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721; Rodman v. Railway Co., 65 Kan. 645, 70 Pac. ......
  • City of Memphis, Tenn., v. Board of Directors of St. Francis Levee Dist., 5757.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 6 March 1916
    ...in the complaint, a demurrer will lie. Collins v. Mack, 31 Ark. 684; Hutchinson v. Hutchinson, 34 Ark. 164; Anthony v. Railway Co., 108 Ark. 219, 157 S.W. 394; Cubbins v. Mississippi River Commission (D.C.) 204 F. 299, 308. The question therefore is whether the complaint shows on its face t......
  • J. L. Williams & Sons, Inc. v. Smith, 4-7042
    • United States
    • Supreme Court of Arkansas
    • 5 April 1943
    ...which the legislature made certain conditions which are a part of the cause of action itself. See Anthony v. St. L., I. M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394, and Earnest v. St. L., M. & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141. In Logan v. Mo. Valley B. & I. Co., 157 Ark. 528, 249 S.W......
  • Request a trial to view additional results
10 cases
  • Davidson v. State
    • United States
    • Supreme Court of Arkansas
    • 9 June 1913
    ...to a verdict at the discretion of the prosecuting attorney, but judgment shall not be rendered until the presence of the defendant [108 Ark. 219] is obtained." It is thus seen that the presence of the defendant upon trial for a felony is mandatory, except that the Legislature has provided t......
  • Davis v. Chrisp, (No. 32.)
    • United States
    • Supreme Court of Arkansas
    • 11 June 1923
    ...may be commenced, it operates as a condition of liability thus created and not merely as a period of limitation. Anthony v. Railway Co., 108 Ark. 219, 157 S. W. 394; Partee v. Railroad Co., 204 Fed. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721; Rodman v. Railway Co., 65 Kan. 645, 70 Pac. ......
  • J. L. Williams & Sons, Inc. v. Smith, 4-7042
    • United States
    • Supreme Court of Arkansas
    • 5 April 1943
    ...which the legislature made certain conditions which are a part of the cause of action itself. See Anthony v. St. L., I. M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394, and Earnest v. St. L., M. & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141. In Logan v. Mo. Valley B. & I. Co., 157 Ark. 528, 249 S.W......
  • Aday v. Chimes School District No. 49, 4-7810
    • United States
    • Supreme Court of Arkansas
    • 28 January 1946
    ...R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600, 123 S.W. 771; Carpenter v. Little Rock, 101 Ark. 238, 142 S.W. 162; Anthony v. St. L. Ry. Co., 108 Ark. 219, 157 S.W. 394; West's Digest, "Statutes," § 161; see, also, 50 Am. Jur. 550. "Another cardinal rule of construction is that, where two acts......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT