Gillette v. Delaware, L. & W. R. Co.
| Decision Date | 19 November 1917 |
| Citation | 102 A. 673,91 N.J.Law 220 |
| Parties | GILLETTE. v. DELAWARE, L. & W. R. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from New Jersey Supreme Court.
Suit by Russell A. Gillette against the Delaware, Lackawanna & Western Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.
James R. Mulligan, of Newark, for appellant.
Frederic B. Scott, of New York City, for appellee.
The suit was for personal injuries, and was based on the federal Employers' Liability Act of 1908 (35 Statutes at Large, p. 65). At the trial, after amendment of the answer so as to raise the point, plaintiff was nonsuited on the ground that the suit had not been commenced within the time provided by section 6 of the act, viz. within two years from the day the cause of action accrued.
Plaintiff was injured on October 6, 1910. He was then under age, and reached his majority July 21, 1915. The suit was begun on July 11, 1916, within a year after his majority but nearly six years after the accident. The question for decision is whether the nonage of plaintiff suspended the operation of section 6 of the federal act.
Our conclusion is that it did not. As in the case of our Death Act (Comp. Stat. 1910, p. 1907), the federal act in creating rights of action at the same time limits their exercise to the period prescribed. It is more than a mere statute of limitation; it is a condition of the bringing of the action that it be begun within two years from the day the cause of action accrued. Hence the inquiry is: When did such cause of action accrue? When could the plaintiff have caused a summons to issue, based thereon?
In the case of fatal injury and suit by a representative, it has been held that the cause of action did not accrue until the representative was appointed. American R. R. Co. v. Coronas, 230 Fed. 545, 144 C. C. A. 599, L. R. A. 1916E, 1095. But the case of an infant is very different. He may bring his suit at once, notwithstanding his minori ty. It is true that the suit must be prosecuted by guardian or next friend (Practice Act of 1903, § 18); but it is not necessary that a next friend be appointed before suit begins; on the contrary, process may be sued out before the next friend is appointed (2 Arch. Prac. 940 [6th Ed.]). This, said our Supreme Court in 1810, "is the common practice." Groff v. Groff, 3 N. J. Law, *656. Consequently there was nothing to prevent the plaintiff's taking out a summons the day...
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