Capps v. Atlantic Coast Line R. Co.

• Decision Date: 22 March 1922
• Docket Number: 64.
• Parties: CAPPS v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

111 S.E. 533

183 N.C. 181

CAPPS v. ATLANTIC COAST LINE R. CO.

No. 64.

Supreme Court of North Carolina

March 22, 1922

Appeal from Superior Court, Wilson County; Allen, Judge.

Action by E. B. Capps, as administrator, against the Atlantic Coast Line Railroad Company, to recover damages for wrongful death. Judgment for plaintiff, and defendant appeals. Reversed and action dismissed.

See also, 178 N.C. 558, 101 S.E. 216; 108 S.E. 300.

Civil action to recover damages for an alleged negligent injury and wrongful killing. From a verdict and judgment in favor of plaintiff, the defendant appealed.

Clark C.J., dissenting.

Where the limitation of time within which to bring an action is contained in the statute giving the right of action, the objection that the action was not brought within the time limited can be taken by demurrer, if the facts appear on the face of the pleading.

F. S Spruill, of Rocky Mount, and Carl H. Davis, of Wilmington, for appellant.

O. P. Dickinson, of Wilson, for appellee.

STACY J.

The following statement of the case will suffice for our present decision.

The plaintiff's intestate, I. M. Williamson, was employed as a carpenter by the Atlantic Coast Line Railroad Company, and on August 16, 1915, "while making investigation as to how to repair a section of the steps of a coal chute" at South Richmond, Va., he received injuries, from which he died 3 days thereafter, August 19th.

On May 15, 1916, plaintiff instituted suit in the superior court of Wilson county, N.C. Complaint was duly filed, specifically setting up a cause of action based on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and alleging that, at the time of the injury, both the plaintiff's intestate and the Atlantic Coast Line Railroad Company were engaged in interstate commerce. The defendant answered, denying liability, and further alleging that plaintiff's intestate, while in its employ, was not engaged in any work of interstate commerce. In deference to this denial and allegation, the plaintiff thereafter, on June 28, 1917, more than 22 months after the death of the decedent, upon motion and over defendant's objection, was permitted to set up, by way of amendment to the original complaint, an additional or new cause of action based on a statute of the state of Virginia, giving a right of action for wrongful death. Upon motion of the defendant, the case was then removed to the District Court of the United States for the Eastern District of North Carolina; and thereafter in said District Court the defendant answered, setting up that the cause of action based on the Virginia law had expired by the very terms of the Virginia statute, since the complaint showed on its face that plaintiff's intestate died on August 19, 1915, more than 12 months prior to the filing of said amendment. The act invoked and upon which the amendment is based provides that--

"Every such action shall be brought by and in the name of the personal representative of such deceased person and within twelve months after his or her death." Pollard's Code of Virginia 1904, § 2903.

It was held in the federal District Court that the complaint had set out two causes of action, one based on the federal Employers' Liability Act and the other on the statute of the state of Virginia, and, further, that the latter cause of action had not been instituted within 12 months after decedent's death, and was therefore barred by the Virginia statute. The plaintiff then and in said District Court of the United States, on June 11, 1918, suffered a voluntary nonsuit upon the cause of action based on the Virginia statute. The original cause was then remanded to the superior court of Wilson county for trial.

Thereafter on May 12, 1919, within 12 months after the judgment of nonsuit in the United States District Court, as above set out, and while the original suit was still pending, the plaintiff issued a new summons against the defendant herein, and on June 25, 1919, following filed his complaint, setting out two causes of action in identically the same language as that used in the complaint, and amendment thereto, filed in the original suit. The defendant, on February 20, 1920, filed answer to the complaint in this second action, but made no objection to the plaintiff prosecuting two separate and independent suits in the same court at the same time with pleadings exactly alike.

At the fall term, 1919, of Wilson superior court, the original suit, based on the federal Employers' Liability Act, was called for trial. A judgment as of nonsuit was entered upon the ground that plaintiff himself was not engaged in work of the character of interstate commerce at the time of his injury. This was affirmed on appeal, and is reported in 178 N.C. 558, 101 S.E. 216. The plaintiff then applied to the Supreme Court of the United States for a writ of certiorari to have said judgment reviewed, which said writ was denied in the summer of 1920. 252 U.S. 580, 40 S.Ct. 345, 64 L.Ed. 726.

Subsequently, at the May term, 1921, of Wilson superior court, the case at bar was called for trial, and the defendant's plea in bar and motion to dismiss were overruled, from which ruling the defendant appealed to this court, but said appeal was dismissed as premature. Capps v. Railroad, 182 N.C. 758, 108 S.E. 300.

Finally, at the November term, 1921, of Wilson superior court, this case again came on for trial, and was heard before his honor O. H. Allen, judge, and a jury. Upon motion of the defendant his honor dismissed the cause of action, based on the federal Employers' Liability Act, for that all the matters and things therein set out and complained of had been fully adjudicated and previously determined. The defendant also moved to dismiss plaintiff's second cause of action, based on the Virginia statute, upon the ground that the same had not been set up or begun within one year from the death of plaintiff's intestate, and that the action could not therefore be maintained. This motion was overruled, and the cause submitted to a jury, which resulted in a verdict for the plaintiff. From the judgment rendered thereon defendant appealed.

The theory upon which his honor below allowed a recovery herein is set out in the judgment of the superior court as follows:

"The defendant in apt time renewed its motion heretofore made to dismiss the complaint as to the second cause of action, which is laid under the statutes of the state of Virginia as appears in the complaint, for that the said second cause of action is a new cause of action, and not a mere amendment to the original complaint, and that the same, not having been filed within one year after the death of decedent, is barred by the statute. The court overruled this motion, holding as a matter of law that the cause of action set out in the three pleadings of the plaintiff, viz. the original complaint filed in the first suit, the alleged amendment thereto, and the complaint filed in the second suit, is one and the same, and submitted the issues to the jury upon the second cause of action. The defendant duly excepted."

The complaint in the first suit was based on the federal Employers' Liability Act. The amendment to the complaint, filed in that proceeding, set up a cause of action based on the Virginia law. The judge of the United States court, ruling on defendant's plea in bar, held that the cause of action, based on the Virginia statute, had not been instituted within 12 months after decedent's death, and hence was barred by the limitation contained in the statute under which it was brought. After this ruling, the first suit proceeded to final judgment without further amendment, and resulted in a judgment of nonsuit, as heretofore noted.

The present suit, as shown by the record, was instituted May 12, 1919, more than three years after Williamson's death. Speaking to the question as to when suit must be brought, under the Virginia statute, the Supreme Court of that state, in Dowell v. Cox, 108 Va. 460, 62 S.E. 272, held:

"That, when the declaration in an action for death by wrongful act shows on its face that the death occurred more than 12 months before action brought, advantage may be taken of the limitation by demurrer. This conclusion was clearly" correct "because, in such cases, the limitation affects the right as well as the remedy."

And to like effect is the holding of the same court in Manuel v. Norfolk & W. Ry. Co., 99 Va. 188, 37 S.E. 957. Our own decisions, dealing with a similar statute, are in full accord with the doctrine announced in the Virginia cases. In Taylor v. Cranberry I. & C. Co., 94 N.C. 525, referring to the limitation contained in the North Carolina statute which allows a recovery for wrongful death, it was said:

"This is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and the action to enforce it must be brought within one year after the death of the testator or intestate, else the right of action will be lost. It must be accepted in all respects as the statute gives it."

The cause of action sought to be enforced in this proceeding was not known at the common law. It was essential, therefore that it should be based on some applicable statute. There was a Virginia statute on the subject, and also the federal Employers' Liability Act. But these two laws dealt with different kinds of commerce, and occupied different, though contiguous, spheres. St. Louis, etc., R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156. If the federal statute were applicable, the state statute was excluded by reason of the supremacy of the former law. Michigan C. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C,...