Herndon v. Wickham

• Decision Date: 11 March 1957
• Docket Number: No. 4612,4612
• Citation: 97 S.E.2d 5,198 Va. 824
• Parties: EMMA V. HERNDON v. HERBERT F. WICKHAM AND GEORGE B. WILLIS. Record
• Court: Virginia Supreme Court

Page 5

97 S.E.2d 5

198 Va. 824

EMMA V. HERNDON v. HERBERT F. WICKHAM AND GEORGE B. WILLIS.

Record No. 4612.

Supreme Court of Appeals of Virginia

March 11, 1957.

Nicholas A. Spinella and Byrne, Spinella & Thompson, on brief, for the plaintiff in error.

Leith S. Bremner, Richard L. Williams and Bremner, Parker, Neal, Harris & Williams, on brief, for the defendants in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Emma V. Herndon, hereinafter called plaintiff, instituted action against Herbert F. Wickham and George B. Willis, hereinafter called defendants, for personal injuries sustained by her when an automobile that she was driving was struck by a truck owned and operated by Wickham and Willis respectively. Defendants denied negligence, asserted plaintiff was guilty of contributory negligence, and relied upon the one year statute of limitations as defenses. The jury returned a verdict for plaintiff, but the court concluded that the action was barred by the statute of limitations, and upon defendants' motion, entered judgment for the defendants non obstante veredicto. We granted plaintiff an appeal.

In her motion for judgment filed June 9, 1954, plaintiff alleged that she was injured on November 23, 1951, and was committed to Eastern State Hospital, Williamsburg, Virginia, on March 31, 1952, 'as a mentally ill person and was not granted a discharge' from that institution until February 3, 1954.

Defendants filed their grounds of defense on June 30, 1954, but did not then invoke the statute of limitations. The case was set for trial on May 24, 1955. On May 13, 1955, defendants served on counsel for plaintiff an amended grounds of defense in which the one year statute of limitations was relied upon. The original of this amendment was lodged in the clerk's office on May 16, 1955, and on May 17, 1955, plaintiff moved the court to reject and dismiss the amended defense. In her written motion to dismiss the amendment, on which argument was heard on May 18, 1955, plaintiff asserted that (1) during the past months defendants had requested and received medical reports on plaintiff's condition and had entered into negotiations for a settlement, and by that conduct and their delay they had waived their right to rely upon the statute; (2) that plaintiff was mentally ill from the date of the accident until her discharge from the hospital on February 3, 1954, and the statute did not begin to run until her discharge; and (3) the applicable statute of limitations was five years and not one year.

By order of May 18, 1955, the court granted leave to defendants to amend their defense and rely upon the statute of limitations, but reserved for later determination the question of whether one year or five years was the applicable limitation. The case was tried on May 24 and 25, and under stipulation of counsel the jury was instructed that if they should find for the plaintiff, they should 'further find as to whether or not the plaintiff was insane at any time on November 23, 1951, and such insanity continued until March 31, 1952, when she was committed to Eastern State Hospital.'

The jury returned the following verdicts:

'We, the jury on the issue joined, find that the plaintiff was sane on November 23, 1951 or sometime between Nov. 23, 1951 and March 31, 1952.'

'We, the jury, on the issue joined, find in favor of the plaintiff and assess her damages at $4,500.00.'

Thereafter the court concluded that the one year limitation applied, set aside the verdict, and entered judgment for defendants.

In her assignments of error plaintiff asserts that (a) the defendants waived their right to rely upon the statute of limitations, and the court erred when it allowed the statute to be invoked, and (b) the limitation on actions for personal injuries applicable to this accident was five years instead of one year as asserted by defendants and decided by the court.

Rule of Court 3:5 contemplates and requires that a defendant file his responsive pleadings 'within twenty-one (21) days after service on him of the notice of motion for judgment.' This rule must, however, be read in connection with Rule of Court 3:13, the pertinent part of which follow:

'The time allowed for filing pleadings may be extended by the court in its discretion, and such extension may be granted though the time fixed has already expired; provided, however, that the time fixed by Rule 3:6 for filing pleas in abatement shall in no case be extended.

* * *

'No amendment shall be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice. In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper.'

Defendants filed responsive pleadings within the twenty-one days but did not then rely upon the statute of limitations. Undoubtedly they were tardy in not notifying plaintiff before May 13, 1955, of their intention to move the court for leave to amend their grounds of defense. Yet it does not appear that plaintiff was taken by surprise or prejudiced when motion to amend was made for she did not request continuance of the case to a later date. Nor is there anything to indicate that by their delay defendants waived their right to request leave to amend their defense or that the court abused its discretion under Rule of Court 3:13 when it allowed defendants to amend and rely upon the statute of limitations. Bibber, et al. v. McCreary, et al., 194 Va. 394, 73 S.E.2d 382. We find no reversible error in the court's ruling on this question.

The Virginia statute of limitations, i.e., § 8-24, Code 1950, covers all personal actions for which no specific limitation is prescribed by any other acts and thus applies to actions for personal injuries. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269 (1896).

This statute was first enacted in 1849. See Vol. 2 Reports of Revisors, 1849, § 11, page 744. It appears in the Code of 1849 as § 11, ch. 149, p. 593, and in subsequent codes as indicated in the margin. ¹ It remained without material change from the time of its enactment in 1849 until amended by Acts 1954, ch. 589, p. 764, and that amending act has no effect upon this action.

When the instant cause of action arose on November 23, 1951, § 8-24 read as follows:

'Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.'

Under this statute the period of limitation is made to depend upon whether or not the cause of action survives the death of either party.

The wrongful death statute enacted in 1871, Acts 1870-71, ch. 29, p. 27 (Code 1873, ch. 145, p. 996) patterned after Lord Campbell's Act passed by the British parliament in 1846, was the first statute in Virginia to permit recovery for death caused by wrongful act, and thus alter the common law rule that a cause of action for personal injury abated at the death of either the tort feasor or the injured party. This statute was amended by Acts 1877-78, ch. 238, p. 221 (§ 2906, Code 1887) and provision made for revival of an action for personal injuries when the injured party died pendente lite and death was caused by the injury inflicted. The pertinent part of § 2906 reads as follows:

'* * * [And], where an action is brought, by a party injured, for damage caused by the wrongful act, neglect, or default of any person or corporation and the party injured dies pending the action, and his death is caused by such wrongful act, neglect, or default, the action shall not abate by reason of his death, but, his death being suggested, it may be revived in the name of his personal representative * * *.' Code 1887, § 2906. (Emphasis added.) Cf. 8-640, Code 1950.

In Anderson v. Hygeia Hotel Company, supra, an action for personal injury was brought eighteen months after the cause of action arose. Plaintiff contended that the revival provision of the Act of 1877-78 satisfied the test for a five year limitation under the statute of limitations, i.e., § 2927, Code 1887, now § 8-24. However, the court concluded that the Act of 1877-78 did not affect the statute of limitations because upon revival of the action, it became an action for wrongful death under the statute and was not the same as the pre-existing action for personal injuries.

The Act of 1877-78 (§ 2906, Code 1887) was amended by Acts of 1893-94, c. 88, p. 83, to provide that actions for personal injuries would not abate by reason of the death of the injured party, but upon suggestion of death it would be revived. Its pertinent portion follows:

'* * * [And] where an action is brought by a party injured, for damages caused by the wrongful act, neglect, or default of any person or corporation, and the party injured dies pending the action, the action shall not abate by reason of his death, but his death being suggested, it may be revived in the name of his personal representative.'

By this amendment an action for personal injury could be revived in case of the death of the injured party though his death did not result from the injury. Birmingham v. Chesapeake & Ohio Railway Co., 98 Va. 548, 37 S.E. 17 (1900).

In the Birmingham case plaintiff contended that in an action for personal injuries the five year limitation was applicable under § 2927, Code 1887, now § 8-24, because of the provision in the Act of 1893-94. The court, however, held that the Act of 1893-94 was not intended to make such a radical change as to amend the statute of limitations and provide a five year limitation for an action for personal injuries...