O'Kief v. Memphis & C.R. Co.

• Decision Date: 02 February 1893
• Citation: 99 Ala. 524,12 So. 454
• Parties: O'KIEF v. MEMPHIS & C. R. CO.
• Court: Alabama Supreme Court

12 So. 454

99 Ala. 524

O'KIEF v. MEMPHIS & C. R. CO.

Supreme Court of Alabama

February 2, 1893

Appeal from circuit court, Colbert county; Henry C. Speake, Judge.

Action by Dennis O'Kief, as administrator of John O'Kief deceased, against the Memphis & Charleston Railroad Company under the employer's liability act, to recover damages for the killing of deceased. From a judgment for defendant plaintiff appeals. Affirmed.

The death of plaintiff's intestate occurred on December 25 1886, and this action was begun on November 19, 1888,-1 year, 10 months, and 24 days after the date of his killing. Among other pleas, defendant set up the statute of limitations of one year, under subdivision 6 of section 2619 of the Code. Demurrers to this plea, raising the question of the application of the statute of limitations mentioned to a case, like the present, to recover under the employer's act for a death, being interposed, were overruled by the court. The court gave the general affirmative charge for defendant, to the giving of which charge plaintiff excepted. Plaintiff requested charges presenting his contention that the statute of limitations of one year did not apply to a case like the present one. The court refused to give such charges, and plaintiff excepted. The single question presented is whether the statute of one year, under subdivision 6 of section 2619 of the Code, controls this case, or whether it is governed by section 2589.

Roulhac & Nathan and J. B. Moore, for appellant.

Humes, Sheffey & Speake, for appellee.

STONE, C.J.

The majority of the court holds that the limitation of one year bars this action, and that, for that reason, the circuit court did not err in giving to the jury the general charge to find for the defendant if they believed the evidence. The question is whether section 2589 or section 2619, subd. 6, ^[1] controls this action. Affirmed.

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Notes:

^[1] Code 1886, §§ 2589, 2619, are as follows Section 2589: "A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons or corporation, his or their servants or agents whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death;" but "such action must be brought within two years...