Birmingham v. Chesapeake & O.Ry. Co
| Citation | 98 Va. 548,37 S.E. 17 |
| Court | Supreme Court of Virginia |
| Decision Date | 20 September 1900 |
| Parties | BIRMINGHAM. v. CHESAPEAKE & O.RY. CO. |
LIMITATION OF ACTIONS—FORM OF ACTION— CONSTRUCTION OF STATUTE—INCIDENTAL EXPENSE.
1. A right of action for trespass on the case in assumpsit to recover damages for personal injuries resulting from negligence is founded in tort, and is barred within one year, and not in three, under Code, § 2920, providing a limitation of three years for actions on contracts not expressly mentioned, as the limitation is determined by the object of the action, and not by its form.
2. Code, § 2927, provides that actions for personal injuries not otherwise limited shall be brought in five years, if the cause of action survive, but within one year if it does not survive. Act Jan. 29, 1894, provides that the right of action for the wrongful death of another shall not be determined by the death of the person injured. Held, that the latter statute does not extend the time for commencing action for a personal injury caused by negligence from one year, as under the statute, to five years.
3. Expenditures made on account of injuries received as the result of the negligence of another does not prevent the statute of limitations from commencing to run from the time of the original injury.
Appeal from circuit court, Botetourt county.
Action by one Birmingham against the Chesapeake & Ohio Railway Company for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Glasgow & Woodson, for appellant.
R. L.Parrish & Son, for appellee.
This is an action of trespass on the case in assumpsit, brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant.
It appears that suit was not brought within one year from the time the cause of action arose, and that the defendant, in addition to the general issue, filed its plea of the statute of limitations, which was sustained, and judgment given accordingly.
It is contended that the one-year statute of limitations does not apply; that this is an action ex contractu, brought to recover damages for the failure of the defendant to safely transport the plaintiff over its railroad from Buchanan, Va., to Harvey, W. Va.; and that it is governed by section 2920 of the Code, which prescribes a limitation of three years upon all contracts except those specifically mentioned therein, and as to which some other limitation is provided by said section.
This position is not tenable. The limitation is not determined by the form of action, but by its object. If the thing complained of is an injury to the person, the limitation in assumpsit is the same as if the action were in form ex delicto. "Whenever the injury is merely personal, whether resulting from breach of contract or from tort, the maxim, 'Actio personalis moritur cum persona, ' prevails." Grubb's Adm'r v. Suit, 32 Grat. 203.
The object of the suit at bar being to recover damages for personal injuries alleged to have been sustained by the plaintiff, the limitation in tort actions is applicable.
It is further contended that, even if this be regarded and treated as...
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Hereford v. Meek, (CC 742)
...in that State, which is identical in language with that of this State, Code, 1931, 55-2-12, in the case of Birmingham v. Chesapeake and Ohio Railway Company, 98 Va. 548, 37 S.E. 17. In that case the plaintiff instituted an action to recover damages for personal injuries alleged to have been......
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Barnes Coal Corp. v. Retail Coal Merchants Ass'n
...affecting the person only." Other Virginia cases relied upon by defendants do not seem to be remotely in point. Birmingham v. Chesapeake & O. Ry. Co., 98 Va. 548, 37 S.E. 17, was a case of personal injury. Cover v. Critcher, 143 Va. 357, 130 S.E. 238, and Vance v. Maytag Sales Corp., 159 Va......
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Hereford v. Meek
...who dies after causing the injury. The reasoning of that Court, however, as expressed in the above quotation from its opinion in the Birmingham case, indicates that the year period of limitations would not be held to apply to the right of action of a person who is injured in his person by a......
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Sharrow v. Inland Lines, Ltd.
...v. M. & C. R. Co., 99 Ala. 524,12 South. 454;Barker v. Hannibal, etc., R. Co ., 91 Mo. 86, 14 S. W. 280;Birmingham v. Chesapeake, etc., R. Co., 98 Va. 548, 37 S. E. 17;Goodwin v. Bodcaw Lumber Co., 109 La. 1050,34 South. 74. To the same substantial effect are the following federal authoriti......