Carden v. Louisville & N.R. Co.

• Decision Date: 25 March 1897
• Citation: 39 S.W. 1027,101 Ky. 113
• Parties: CARDEN v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

39 S.W. 1027

101 Ky. 113

CARDEN v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 25, 1897

Appeal from circuit court, Hart county.

"To be officially reported."

Action by C. R. Carden, administrator, against the Louisville &amp Nashville Railroad Company, for death by wrongful act. From an order dismissing the complaint, plaintiff appeals. Affirmed.

S. M Payton, for appellant.

H. W Bruce, J. A. Mitchell, and Wm. Lindsay, for appellee.

BURNAM J.

Appellant instituted this suit in the Hart circuit court on the 19th day of April, 1895, as administrator of the estate of Julia Ann Smith, alleging that on the 15th day of December, 1887 the said Julia Ann Smith departed this life intestate, her husband having died a few years before intestate, and that said Julia Ann Smith left surviving her four children as the only heirs at law, all of whom were over 21 years of age at the date of her death, except one. The claim is for compensatory damages for the negligent killing of deceased by the appellee on the 15th of September, 1887, more than seven years before the filing of the suit. The appellee denied allegations of negligence, pleaded contributory negligence on the part of deceased, and also pleaded and relied upon, in a separate section, the lapse of time and statute of limitations in bar of plaintiff's right of recovery. To this appellant demurred, which demurrer was overruled, and, being carried back to the petition, the same was dismissed, and appellant appeals to this court, and asks a reversal.

The only question involved in the case on appeal is the plea of limitation. It is contended by plaintiff that, as his cause of action did not accrue until after the death of his decedent, the statute did not begin to run until the appointment of plaintiff as administrator; and in support of this contention counsel for plaintiff appeals to a rule of construction adopted by this court in a number of cases for recovery of personal property, to the effect that the term "cause of action" implies, "not only a right of action, but also the existence of some person who is competent to sue under it." Under the common law, no recovery could be had for an injury resulting in death,-the right of action died with the person; and that continued to be the law until in 1846, when the English parliament altered the rule by enacting a law by which the right to sue in such a case was given to the personal representative. This English law was adopted, in substance, in this state in the year 1854, and reads as follows: "If the life of any person not in the employment of a railroad company, shall be lost in this commonwealth by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness, or negligence, or carelessness of their servants or agents, the personal representative of the person whose life is so lost may institute suit to recover damages in the same manner as the person himself might have done for an injury where death did not ensue." Gen. St. c. 57, § 1. The suit of plaintiff is brought under this provision of the statute. Section 3, art. 3, c. 71, provides that "a cause of action for injury to person of plaintiff *** shall be commenced within one year next after the cause of action accrued, and not thereafter." Section 2, art. 4, c. 71, provides that "if a person entitled to bring suit in any of the actions mentioned in article 3 of this chapter-except for a penalty or forfeiture-was, at the time the cause of action accrued, an infant, married woman, or of unsound mind, the action may be brought within a like number of years after the removal of such disability or the death of the person-whichever happened first-that is allowed to a person having no such impediment to bring the same after the right accrued."

It will assist us, in seeking to arrive at a proper determination of the meaning of the words of the statute, to trace chronologically, in the order of their enactment, the variations which have attended this statute since its original enactment, in 1854. Section 4 of the act of 1854 reads as follows: "Actions under this act shall be commenced within one year from the time of such death." This entire statute, with the limitations and all the exceptions to same, appears in 2 Stanton's Rev. St. p 510. Upon the adoption of the General Statutes, the compilers transferred the whole act of 1854, except section 4, to chapter 57 of the General Statutes. They embraced other statutory provisions in sections 4 to 9, inclusive, of that chapter. Section 3, c. 63, p. 128, 2 Stanton's Rev. St., provides: "An action for an injury to the person of plaintiff or of his wife, child, ward, apprentice or servant, and action for a malicious prosecution, *** shall be commenced within one year next after the cause of action accrued." The section in the General Statutes that corresponds with the one quoted is section 3, art. 3, c. 71, and reads as follows: "An action for an injury to the person of plaintiff, or of his wife," etc., "or for injuries to person, cattle or stock by railroads, or by any company or corporation, and...