Faulkner's Adm'r v. Louisville & N.R. Co.

• Decision Date: 16 May 1919
• Citation: 184 Ky. 533,212 S.W. 130
• Parties: FAULKNER'S ADM'R v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

212 S.W. 130

184 Ky. 533

FAULKNER'S ADM'R v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 16, 1919

Rehearing Denied June 20, 1919.

Appeal from Circuit Court, Grant County.

Action by S. T. Faulkner's administrator against the Louisville & Nashville Railroad Company. Judgment of dismissal, and plaintiff appeals. Affirmed.

D. E Ernst, of Russell, for appellant.

C. H Moorman and B. D. Warfield, both of Louisville, and A. G. De Jarnett and F. A. Harrison, both of Williamstown, for appellee.

CLARKE J.

The only question for decision upon this appeal is whether the cause of action conferred by section 6 of Kentucky Statutes upon an administrator for the death from negligence of his intestate is barred by limitations, under section 2516 of the Statutes, in one year from the death of the intestate, as held by the lower court, or in one year from the qualification of the administrator as contended by the appellant.

This precise question was decided by this court in Carden's Adm'r v. L. & N. R. R. Co., 101 Ky 113, 39 S.W. 1027, 19 Ky. Law Rep. 132, and L. & N. R Co. v. Simrall's Adm'r, 127 Ky. 55, 104 S.W. 1011, 31 Ky. Law Rep. 1269, in both of which cases it was held that the limitation period began to run upon the date of the death, and the cause of action was barred one year thereafter. In the Carden Case our present statute of limitation with reference to actions for death was considered in the light of former enactments upon the same subject, and it was construed as being in intent and purpose but a re-enactment of the act of 1854, which gave the right of action for the loss of life and expressly provided that the limitation period should be one year from the date of death. The Carden Case has been cited with approval by this court in many subsequent cases, and as we said in the Simrall Case, supra:

"In other words, if section 4 of the act of 1854 is in meaning and effect included in section 3, art. 3, c. 71, Gen. Stats., then it must follow that it is also included in section 2516 of the Kentucky Statutes of 1903 [the latter being our present statute]; and therefore it conclusively appears that from 1854 until the present day the legislative intent has been that the cause of action for the death accrues as of the date of the death. Such has been the ruling of this court in every case to which our attention has been called, and certainly no legislative act, during the more than 50 years of legislation since 1854, can be found altering or repealing this legislative intent."

It would therefore seem, since neither the Carden Case nor the Simrall Case has been overruled or departed from so far as we can find, that the question is not an open one in this jurisdiction. Moreover, this construction of our statute is in harmony with the great weight of authority in other jurisdictions, although in some a different conclusion has been reached, due, however, usually to the peculiar phraseology of the statute upon the question. See 8 R.C.L. 803; 13 Cyc. 339. We cannot, therefore, accept as authority the contrary conclusions of the court in American Ry. Co. v. Coronas, 230 F. 545, 144 C.C.A. 599, L.R.A. 1916E, 1095, construing a federal statute somewhat similar in phraseology to our statute, but which was the initial legislation by the federal government upon the particular cause of action, whereas, as we have seen, our statute is but the re-enactment of, and expressing the same legislative intent and purpose as, a previous act which expressly provided that the limitation period began to run with the death.

Counsel for appellant also relies upon the case of L. & N. R. Co v. Brantley, 106 Ky. 849, 51 S.W. 585, 21 Ky. Law Rep. 473, in which it was held that by the provisions of section 2526, Kentucky...