Atlantic, V. & W. R. Co. v. McDilda

• Decision Date: 16 May 1906
• Citation: 54 S.E. 140,125 Ga. 468
• Parties: ATLANTIC, V. & W. R. CO. v. McDILDA.
• Court: Georgia Supreme Court

54 S.E. 140

125 Ga. 468

ATLANTIC, V. & W. R. CO. v. McDILDA.

Supreme Court of Georgia

May 16, 1906

Syllabus by the Court.

An action by a wife to recover damages for the negligent homicide of her husband is an action for "injury done to the person," and must be brought within two years after the date of the death of the husband.

Error from Superior Court, Clinch County; T. A. Parker, Judge.

Action by L. J. McDilda against the Atlantic, Valdosta & Western Railroad Company. Demurrer to petition overruled, and defendant brings error. Reversed.

Mrs. L J. McDilda brought suit against the Atlantic, Valdosta & Western Railroad Company for the homicide of her husband. The homicide occurred September 1, 1899, and the suit was filed September 7, 1901. The defendant demurred to the petition one of the grounds being that it appeared therefrom that the right of action was barred by the statute of limitations. The demurrer was overruled, and the defendant excepted.

Toomer & Reynolds, for plaintiff in error.

S. C Townsend and Leon A. Wilson, for defendant in error.

COBB P.J. (after stating the foregoing facts).

The controlling question in this case is what is the statute of limitations applicable to a suit brought on a cause of action arising from a negligent homicide? There is no statute which, in its very terms is applicable to suits of this character. The limitation act of 1856 (Acts 1855-56, p. 233) was evidently intended to be exhaustive of all suits that could be brought in the courts of this state. The title of the act was in the following language: "An act limiting the time in which suits in the courts of law in this state must be brought, and also limiting the time in which indictments are to be found and presented in certain cases, and for other purposes therein mentioned." It is utterly repugnant to the genius of our laws for a person to be forever liable for a wrong done, whether that wrong arise out of contract or out of tort. As was said by Mr. Chief Justice Marshall, in Adams v. Woods, 2 Cranch, 342, 2 L.Ed. 297: "In a country where not even treason can be prosecuted after a lapse of three years, it can scarcely be supposed that an individual would remain forever liable to a pecuniary forfeiture." It is therefore to be determined under what provision of the limitation laws of this state a cause of action of the character now under consideration will fall. The present law allowing a cause of action for a negligent homicide had its origin in the act of February 23, 1850 (Cobb's Dig. 476), which was in force at the time that the limitation act of 1856 was passed. It is therefore to be presumed that the General Assembly intended this character of action to be embraced within some of the provisions of that law. We think it comes within that provision which is now contained in Civ. Code 1895, § 3900, which declares: "Actions for injuries done to the person shall be brought within two years after the right of action accrues." In the Code of 1861 there is a distinct chapter which bears the heading, "Of Injuries to the Person." Article 1 of this chapter is headed, ""Physical Injuries," and section 2913, in that article, contains the provision of the law giving a widow, or if no widow a child or children, the right to recover for the homicide of the husband or parent. This was a codification of the act of 1850 and its various amendments, and is the law which is now embraced in Civ. Code 1895, § 3828, along with the amendments which have been passed since the adoption of the Code of 1861. The law in reference to a cause of action for a negligent homicide has in every Code been placed in a chapter headed "Of injuries to the Person." Two of the Codes have been adopted by the General Assembly, and one of them by a constitutional convention. The classification of a suit for a negligent homicide as an injury to the person rests, therefore, not only upon the opinion of the different codifiers, which is itself entitled to great weight, but also upon direct legislative action approving the classification thus made. See, in this connection, Johnson v. Bradstreet Co., 87 Ga. 79, 13 S.E. 250, Hutcherson v. Durden, 113 Ga. 987, 39 S.E. 495, 54 L.R.A. 811.

It seems, from the briefs of counsel, that there is no contention on either side that the action is subject to no limitation of time; but they disagree as to the time in which the action should be brought. Counsel for plaintiff in error contend that, as the action is in the nature of a suit for a penalty, the bar of the statute attaches after the lapse of one year from the time of the cause of action arose. On the other hand, counsel for defendant in error contend that the cause of action is the injury to the property rights of plaintiff, and the suit is not barred until after the lapse of four years from the time the cause of action arises. The contention that the action is in the nature of a suit for a penalty is based on some expressions contained in the dissenting opinion in the case of So. Bell Tel. Co. v Cassin, 111 Ga. 575, 36 S.E. 881, 50 L.R.A. 694. In Savannah Elec. Co. v. Bell, 124 Ga. 663, 53 S.E. 109, the statute giving a right of action for a negligent homicide is declared to be in effect both penal and remedial. It is remedial in that there must be a dependence upon the person killed, and a contribution to the support of the plaintiff must have been made by the deceased. It is penal in that the measure of the...