Lewis v. Mo. Pac. Railroad Co.

• Decision Date: 30 December 1929
• Docket Number: No. 27725.,27725.
• Parties: MARY LEWIS, Administratrix of Estate of JOHN LEWIS, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

23 S.W.2d 100

MARY LEWIS, Administratrix of Estate of JOHN LEWIS, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 27725.

Supreme Court of Missouri, Division One.

December 30, 1929.

Appeal from Wayne Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED.

Thomas J. Cole, Arnot L. Sheppard and J.C. Sheppard for appellant.

(1) The court erred in overruling the defendant's demurrer to the plaintiff's petition, for the reason that it showed on its face, that the suit was barred by the Statute of Limitations. Reading Railroad Co. v. Koons, 271 U.S. 58, 46 Sup. Ct. Rep. 405. (2) The court erred in overruling the defendant's objection to the introduction of any testimony in the case at the beginning of the trial and erred in overruling defendant's demurrer to the evidence at the close of the case for the reason that the petition shows on its face, and the evidence offered by the plaintiff, shows conclusively that the plaintiff's cause of action was barred by the limitation under the Employers' Liability Act as amended. Comp. St. sec. 8657 et seq.; Reading Railroad Co. v. Koons, 271 U.S. 58. (3) It might be suggested that the defendant could not take advantage of the limitation section because it is not pleaded. This matter has been set entirely at rest by the Supreme Court of the United States by holding that it is not necessary to plead it at all. Atlantic Coast Line Railroad v. General Burnette, 239 U.S. 199; Winfree v. Railroad, 227 U.S. 302.

FRANK, J.

Action by Mary Lewis, administratrix of the estate of John Lewis, deceased, to recover damages from the Missouri Pacific Railroad Company on account of the death of her husband, John Lewis, alleged to have been caused by the negligence of defendant. Plaintiff recovered judgment in the sum of $10,000 and defendant appealed.

Respondent has not favored us with a brief. Appellant closed its brief by saying that respondent would not file a brief. Why respondent has lost interest in this appeal is left to conjecture.

The petition pleads a case under the Federal Employers' Liability Act. At the request of plaintiff it was submitted to the jury on that theory, hence we will so treat it.

Defendant demurred to plaintiff's petition on the ground it appeared from the face of the petition that the alleged cause of action was barred by the Statute of Limitations. This demurrer was overruled, and the cause proceeded to trial. At the beginning of the trial, defendant objected to the introduction of any evidence, and at the close of the case demurred to the evidence, on the ground that it appeared from the face of the petition and from the evidence introduced that plaintiff's cause of action was barred by limitations under the Federal Employers' Liability Act, which provides that:

"No action shall be maintained under this Act unless it is commenced within two years from the day that the cause of action accrued."

It has been recently held by the Supreme Court of the United States that the limitation upon the time for bringing suit for damages for death under the Federal Employers' Act begins to run from the date of death and not from the date of appointment of an administrator. [Reading Railroad Company v. Koons, 271 U.S. 58, 46 Sup. Ct. Rep. 104.]

The petition pleads, and the evidence tendered in support thereof shows, that deceased was killed on August 22, 1921; that plaintiff was appointed administratrix of his estate on December 14, 1925, and filed this suit on December 17, 1925, which was more than two years after the cause of action accrued. By the terms of the act under which this action was brought, as construed by the Supreme Court of the United States in Reading Railroad Company v. Koons, supra, the cause of action accrued on the date of decedent's death which occurred on August 22, 1921. The answer does not plead the statute of limitations as a defense, so the question is, whether or not defendant is entitled to the benefit of the statute without pleading it. It is well settled that where statutes of limitation affect the remedy only, and not the right, the necessity of pleading such statutes as a defense is governed by the law of the place where the suit is brought. But the rule is otherwise where the statute creating the cause of action also extinguishes the liability if suit is not brought thereon within the time fixed by the statute. The Supreme Court of the United States in Central Vermont Railway Company v. White, Administratrix, 238 U.S. 507, 511, states the rule thus:

"There can, of course, be no doubt of the general principle that matters respecting the remedy — such as the form of the action, sufficiency of the pleadings, rules of evidence, and the statute of limitations — depend upon the law of the place where the suit is brought. [McNiely v. Holbrook, 12 Pet. 89.] But matters of substance and procedure must not be confounded because they happen to have the same name. For example, the time within which a suit is to be brought is treated as pertaining to the remedy. But this is not so if, by the statute giving the cause of action, the lapse of time not only bars the remedy but destroys the liability. [Phillips v. Grand Trunk Ry., 236 U.S. 662; Boyd v. Clark, 8 Fed. Rep. 849; Hollowell v. Horwick, 14 Mass. 188; Cooper v. Lyons, 77 Tenn. 597 (2); Newcombe v. Steamboat Co., 3 Iowa (G. Greene), 295.] In that class of cases the law of the jurisdiction, creating the cause of action and fixing the time within which it must be asserted, would control even where the suit was brought in the courts of a state which gave a longer period within which to sue."

In order to apply the rules above announced to the facts of this case, it is necessary for us to determine whether or not the two-year limit of time in which suits may be brought, as fixed by the Federal Employers' Act, pertains to the remedy only, or whether such act also destroys the liability, where, as here, the action is not brought within the time limited in the statute.

These questions must be answered by the decisions of the Federal courts construing this statute. The statute here considered was construed by the Circuit Court of Appeals, First Circuit, in the...