Gulf & S.I.R. Co. v. Bradley

• Decision Date: 11 October 1915
• Docket Number: 17212
• Citation: 69 So. 666,110 Miss. 152
• Parties: GULF & S. I. R. CO. v. BRADLEY
• Court: Mississippi Supreme Court

69 So. 666

110 Miss. 152

GULF & S. I. R. CO. v. BRADLEY

No. 17212

Supreme Court of Mississippi

October 11, 1915

APPEAL from the circuit court of Jones county. HON. P. JOHNSON Judge.

Suit by Willie Emma Bradley, by next friend, against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, demurrer sustained, and cause dismissed.

B. E Eaton, for appellant.

This suit cannot be maintained for the reason that it was not instituted within one year from the time of the alleged wrongful death. For the purpose of avoiding confusion, the first count of the declaration as above set out will hereafter be referred to simply as the declaration, by reference to which, it will be seen that the wrongful death for which a recovery is sought in this suit occurred on the 15th day of August, 1902. The present suit was instituted on the twelfth day of February, 1913, as shown by the summons in the record and by the date of the filing of the declaration. But the only statute in effect when the death occurred authorizing a recovery for this wrongful death was section 663 of the Code of 1892, as amended by the Law of 1898, page 82. The amended section aforesaid was brought forward and appears without change as section 721 of the Code of 1906. The provision of section 721 with reference to the time in which suit shall be brought is as follows: "But every such action shall be commenced within one year after the death of such deceased person."

At common law no right of recovery existed for the death of a person caused by the negligent or wrongful act of another and the first right of recovery grew out of the passage of Lord Campbell's Act in 1846, which serves as a basis of all subsequent acts allowing damages for a wrongful death. Every right of recovery is therefore a statutory right and in derogation of the common law. Every state in the Union has adopted the principle of recovery for wrongful death first contained in Lord Campbell's Act, with variations however as to the time within which suit is to be brought and by persons entitled to sue and the damages recoverable in such suit. Until 1908 the period within which suit was required to be brought in Mississippi was one year, but this time restriction was omitted in the amendment to section 721 by the legislature at its session in 1908, Sheet Acts, p. 204. So far as my investigation has disclosed, Mississippi is now the only state which has entirely eliminated the provision as to the time in which suit is to be brought; the other states with possibly four exceptions having this time limit ranging from one to three years. However, as stated in the outset, since the death which is the basis of this suit occurred on the fifteenth of August, 1902, the amendment referred to above does not in any manner affect the right of plaintiff's recovery, and such right, if it exists, must be found in the unamended section 721 with its time period of one year.

It is the universal doctrine that the time limit inserted in all statutes of this character is not the usual and ordinary period of limitation but is, in and of itself, a part of the cause of action and is a limitation on the cause of action and entirely destroyes it, if the right to sue is not exercised within the time provided. This doctrine is so universal that it is both tedious and unwise to attempt a complete collation of authorities, but the subject is so covered in the case of Amanda Rodman, admx. v. Missouri Pacific R. R. Co. (a Kansas case), found in 59 L. R. A. 704, that it seems desirable to set out in full that portion of the opinion dealing with this time limit provision. This opinion cites many authorities and the authorities referred to so fully and amply sustain the decision of the court that this case may very justly be termed a leading case upon the subject. The extract from this opinion above cited begins on page 706 and is as follows:

"At common law, or in the absence of 422, no right of action would exist in this state in favor of any one to recover damages for the wrongful death of Rodman. Mobile Life Ins. Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580; Dennick v. Central R. Co., 103 U.S. 11, 26 L.Ed 439; The Harrisburg, 119, U.S. 199, sub nom; The Harrisburg v. Rickards, 30 L.Ed. 358, 7 S.Ct. 140. The general character and purpose of the act and the nature of the limitation therein contained, have many times received the consideration of the courts. This court, in Hamilton v. Hannibal & St. J. R. Co., 39 Kan. 56, 18 P. 57, in considering the act of Missouri creating a right of action for wrongful death said: 'The right thus conferred is a conditional one, and the plaintiffs in such action must bring themselves clearly within the prescribed conditions necessary to confer the right of action.' In the opinion Mr Justice JOHNSON says: "The provision designating when and by whom the suit may be brought is more than a mere limitation. It is a condition imposed by the legislature, which qualifies the right of recovery, and upon which its exercise depends. The supreme court of Missouri has recently examined and interpreted this statute, and, in an elaborate opinion reaches the conclusion that the right is a conditional one, and the condition, being annexed to the right as given in the statute modifies the same, and in fact forms a part of the right itself." In The Harrisburg, 119 U.S. 199, sub nom; The Harrisburg v. Rickards, 30 L.Ed. 358, 7 S.Ct. 140, Mr. Justice WAITE, who delivered the opinion of the court in speaking of the statutes of the states of Massachusetts and Pennsylvania said: "The statutes create a new legal liability, with a right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. . . . It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes and the limitations of the remedy are, therefore, to be treated as limitations of the right." In Boston & M. R. Co. v. Hurd, 56 L. R. R. 193; 47 C. C. A. 615, 108 F. 116, it is said: "It has been universally held that where a special statute of this character gives a remedy, with an express limitation in the statute, the limitation is inherent in the right of action, and follows the remedy wherever there is an attempt to obtain it." In Taylor v. Cranberry Iron & Coat Co., 94 N.C. 525, it is held: "The provisions of this statute limiting the time within which the action must be brought is not a statute of limitations. The statute confers a right of action which did not exist before, and it must be strictly complied with. As there is no saving clause as to the time of bringing the action, no explanation as to why it was not brought will avail." Mr. Tiffany in his work on Death by Wrongful Act (121), says: "These special limitations differ in some respects from those created by the ordinary statutes of limitation. Inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. The right is given subject to the limitation, and a subsequent change in the period of limitation will not extend the period so as to affect an existing right of action." In 8 Am. & Eng. Ency. Law (2 Ed.), p. 875, it is said: "It seems that provisions in the statutes authorizing actions for wrongful death, which limit the time within which the actions shall be brought, are not properly statutes of limitation, as that term is generally used. They are qualifications restricting rights granted by the statutes, and must be strictly complied with. As the statutes confer a new right of action, no explanation as to why the suit was not brought within the specified time will avail, unless the statutes themselves provide a saving clause." See, also George v. Chicago, M. & St. P. R. Co., 51 Wis. 603, 8 N.W. 374; Hanna v. Jeffersonville R. Co., 32 Ind. 113; Rest v. Kinston, 106 N.C. 205, 10 S.E. 997. The precise question here under consideration arose in Gerren v. Hannibal & St. J. R. Co., 60 Mo. 405. It is there held: "Under No. 5 of the damage act, the new suit brought against a railroad after nonsuit must be commenced within one year after the date of the injury. Section 19 of the chapter containing limitations . . . authorizing the commencement of a new action within a year from the date of nonsuit, has no application to causes, the time for bringing which is not 'prescribed' by that chapter . . . but otherwise limited." Also, in Lake Shore & M. S. R. Co. v. Dylinski, 67 Ill.App. 114, it is held: "Actions for damages resulting from the death of a person caused by the wrongful act of another may be commenced within two years after such death. The time is not extended by a nonsuit in a previous action." Many cases have arisen in which it has been held that minority or other legal disability of the party entitled to bring and maintain the action will not operate to extend the time prescribed in the statute for the bringing of the action, in the absence of a saving clause in the act itself. Foster v. Yazoo & M. Valley R. Co., 72 Miss. 886, 18 So. 380; Murphy v. Chicago, M. & St. P. R. Co., 80 Iowa 26, 45 N.W. 392; Best v. Kinston, 106 N.C. 205, 10 S.E. 997; O'Keif v. Memphis & C. R. Co., 99 Ala. 524, 12 So. 454; Louisville & N. R. Co. v. Sanders, 86 Ky. 259, 5 S.W. 563. In Beebe v. Doster, 36 Kan....