Louisville & N.R. Co. v. Brantley's Adm'r

• Decision Date: 13 June 1899
• Citation: 106 Ky. 849,51 S.W. 585
• Parties: LOUISVILLE & N. R. CO. v. BRANTLEY'S ADM'R. [1]
• Court: Kentucky Court of Appeals

51 S.W. 585

106 Ky. 849

LOUISVILLE & N. R. CO. v. BRANTLEY'S ADM'R. ^[1]

Court of Appeals of Kentucky.

June 13, 1899

Appeal from circuit court, Christian county.

"To be officially reported."

Action by the administrator of John L. Brantley against the Louisville & Nashville Railroad Company to recover for pain and suffering. Judgment for plaintiff, and defendant appeals. Reversed.

B. D Warfield, Joe McCarroll, and H. W. Bruce, for appellant.

E. W Hines, Breathitt & Fowler, and Cullop & Kessinger, for appellee.

HAZELRIGG C.J.

In July, 1891, John L. Brantley, while in the service of the appellant, received injuries from which he died within a few hours. In May, 1895, this action was brought by his administrator for damages to his intestate by reason of his pain and suffering. The statute of limitations was pleaded but held by the trial court not to apply, and this is the controlling question in the case. It will be seen that some three years and 10 months elapsed from the accrual of the cause of action until the institution of the suit, whereas the section under which the limitation in such actions is fixed provides as follows: "An action for an injury to the person of the plaintiff, or his wife, child, ward apprentice, or servant, or for injuries to person, cattle or stock by railroads, or by any company or corporation; an action for a malicious prosecution, conspiracy, arrest seduction, criminal conversation or breach of promise of marriage; an action for libel or slander; an action for the escape of a prisoner arrested or imprisoned on civil process, shall be commenced within one year next after the cause of action accrued, and not thereafter." Gen. St. c. 71, art. 3, § 3; Ky. St. § 2516. The words "and not thereafter" are not found in the corresponding section of the Revised Statutes fixing the limitation of the actions indicated above, and it is contended they were added for the express purpose of precluding the application of the following provision of the General Statute: "If a person entitled to bring any action mentioned in the third article of this chapter dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, the action thereon may be brought by his representative after the expiration of that time, if commenced within one year after his qualification." Gen. St. c. 71, art. 4, § 3; Ky. St. § 2526. The "third article" referred to in the section last quoted contains numerous provisions as to the limitation of actions other than the provision fixing the limitation of actions for personal injuries, malicious prosecution, etc.; and it is said there is therefore ample room for the operation of section 3, art. 4, as to the limitation of actions. The words "and not thereafter" do not occur in any other of these sections of article 3, and the nature of the actions in these other sections are not such as to demand so speedy a settlement of the issues of the suit, if any were to be instituted. Inasmuch as it is permissible under our statutes to grant original administration during a period of 20 years after the death of the testator or intestate, the application of the section last quoted to the causes of action mentioned in section 3, art. 3, would give, it is argued, a right of action for personal injuries, injuries to cattle, etc., for a period of 21 years from the accrual of the cause of action. We cannot believe that the legislature intended to elongate the time for bringing actions on demands of the character indicated to such an unreasonable period. But whether the words "and not thereafter" were added to the section for the purpose of making the limitations as to these actions an exception to the provisions of the subsequent section is at least very doubtful. In Carden v. Railroad Co. (...