Hoover's Adm'x v. Chesapeake & O. Ry. Co

• Citation: 33 S.E. 224,46 W.Va. 268
• Court: Supreme Court of West Virginia
• Decision Date: 08 April 1899
• Parties: HOOVER'S ADM'X. v. CHESAPEAKE & O. RY. CO.

33 S.E. 224

46 W.Va. 268

HOOVER'S ADM'X.

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

April 8, 1899.

Wrongful Death—Limitations.

Under section 5, c. 103, Code, an action may be maintained within two years after the death of the person whose injury is the primary cause of such action, although such death does not occur within more than one year from the time of such injury.

(Syllabus by the Court.)

Error to circuit court, Summers county; J. M. McWhorter, Judge.

Action by J. H. Hoover's administratrix against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Miller & Read, for plaintiff in error.

Simms & Enslow, for defendant in error.

DENT, P. In the case of J. H. Hoover's administratrix against the Chesapeake & Ohio Railway Company, from the circuit court of Greenbrier county, being a suit for damages for the negligent killing of plaintiff's intestate, the declaration alleges that the injury occurred on the 30th day of November, 1891, and that death did not ensue until the 5th day of October, 1893, more than a year thereafter. The defendant insists, for this reason, to wit, that J. H. Hoover, because of the bar of the statute of limitations, not having a cause of action at the time of his death, the plaintiff could not maintain her action on account thereof; in short, that no action can be maintained under section 5, c. 103, Code, unless death ensue within one year after the negligence charged, or suit be pending at the time of such death. Such section is as follows, to wit: "Sec. 5. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although death shall have been caused under such circumstances as amount in law to murder in the first or second degree or manslaughter."

It is claimed that, the injured having lost his right to sue by reason of the bar of the statute of limitations at the time of his death, the cause of action is thereby destroyed, both as to himself and his administratrix; that death must find him with a cause of action legally enforceable, or she has none. This is undoubtedly true where the cause of action never existed, or is defeated by contributory negligence, or it has been compromised or released; for in such cases there is a complete want of, or destruction by, satisfaction of the cause, not merely of the right of action or remedy. Dibble v. Railroad Co., 25 Barb. 183; Whitford v. Railroad Co., 23 N. Y. 484; Littlewood v. Mayor, etc., 89 N. Y. 24; Fowlkes v. Railroad Co., 5 Baxt. 663. In a certain class of cases the bar of the statute not only takes away the remedy but destroys the cause of action. When the liability and the limitation is created by the same statute, the latter operates on the former, or liability, and not on the remedy alone. The Harris-burg, 119 U. S. 199, 7 Sup. Ct. 140. Generally speaking, however, the statute of limitations acts on the remedy, and takes away the right of action, and, while it prevents relief, it does not destroy the cause of action, or the moral obligation on the negligent party to make good the injury caused by his default or neglect. A verdict of acquittal in a criminal case may enable a felon to escape lawful punishment, yet it does not restore his innocence, or make restitution for the wrong done. In personal actions for injury the bar of the statute precludes the remedy, but it does not satisfy the wrong. A presumption that a guilty party would rely upon the statute of limitations to avoid making satisfaction for an injury done is too violent to justify the inference that the legislature had in contemplation the bar by limitation of the personal right of action in the enactment of the section under consideration.

The first clause of the section, "Whenever the death of a person shall be "caused by...