Gulledge v. Seabd. Air Line Ry. Co

• Decision Date: 01 April 1908
• Citation: 147 N.C. 234,60 S.E. 1134
• Court: North Carolina Supreme Court
• Parties: GULLEDGE . v. SEABOARD AIR LINE RY. CO.

60 S.E. 1134

147 N.C. 234

GULLEDGE .

v.SEABOARD AIR LINE RY. CO.

Supreme Court of North Carolina.

April 1, 1908.

Death—Right of Action—Time for Bringing—Action "to be Brought Within One Year."

Revisal 1905, § 59. provides that, where a person's death is caused by the wrongful act of another such as would have entitled the injured person, if living, to an action for damages therefor, the person or corporation causing the injury shall be liable to an action for damages, "to be brought within one year" after such death by decedent's administrator, etc. Held, that the words "to be brought within one year" constitute a condition annexed to the cause of action, and not a statute of limitation, which must be pleaded.

Appeal from Superior Court, Anson County; Webb, Judge.

Action by R. H. Gulledge against the Seaboard Air Line Railway Company to recover for the death of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Reversed.

John D. Shaw and Murray Allen, for appellant.

Robinson & Caudle, H. H. McLendon, J. T. Bennett, and J. A. Lockhart, for appellee.

BROWN, J. The defendant moved to dismiss the action, because the evidence of plaintiff disclosed that the action had not beencommenced within one year from the death of plaintiff's intestate. The intestate died April 1G, 1902, and the action was not commenced until January 26, 1906. The plaintiff contends that the statute of limitations has not been pleaded in the answer, and, further, that there was a prolonged contest over letters of administration upon the intestate's estate, begun June 7, 1902, and ended in June, 1905, which time should not be counted, under Revisal 1905, § 369.

This action is brought under section 59 of the Revisal of 1905: "Whenever the death of a person is caused by wrongful act, neglect or default of another, such as would, if the injured party had lived, entitle him to an action for damages therefor, the person or corporation that would have been so liable, and his or their administrators, executors, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amount in law to a felony." Unfortunately for the plaintiff's case, this court has heretofore interpreted the words "to be brought within one year, " contained in the statute, as a condition annexed to the cause of action, and not as a statute of limitation, which must be pleaded. Before the plaintiff can make out a prima facie case, he must offer evidence tending to prove that the action was commenced within...