New Orleans Great Northern R. Co. v. Fortinberry

• Decision Date: 16 February 1914
• Docket Number: 16264
• Citation: 107 Miss. 79,64 So. 966
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS GREAT NORTHERN RAILROAD CO. v. JOHN FORTENBERRY

64 So. 966

107 Miss. 79

NEW ORLEANS GREAT NORTHERN RAILROAD CO. v. JOHN FORTENBERRY

No. 16264

Supreme Court of Mississippi

February 16, 1914

APPEAL from the circuit court of Marion county, HON. A. E WEATHERSBY, Judge.

Suit by John Fortenberry by next friend against the New Orleans Great Northern Railroad Company. From a judgment for plaintiff defendant appeals.

Appellee by his next friend, brought suit against the appellant in the circuit court of Marion county, Mississippi, for injuries sustained by him while a passenger on one of the trains of appellee going from New Orleans, Louisiana, to Columbia Mississippi. The injury occurred at Bogalousa, Louisiana. The appellant, railroad company, has a line of road running in both states, and is chartered under the laws of both states. The suit in question was not begun until more than one year after the injury occurred, and the railroad company filed a plea that the cause of action was barred by the statute of limitations of one year of the state of Louisiana. The statute of limitations had not run against the cause of action in the state of Mississippi. The railroad claimed that since the accident occurred in the state of Louisiana, suit could not be brought in the state of Mississippi. The plaintiff demurred to this plea, and the demurrer was sustained. The case then went to trial on a plea of general issue, and a plea of contributory negligence, and resulted in a jury and verdict for one thousand dollars. The railroad company appeals on the ground that section 3114 governs the case. Said section is as follows: "Section 3114. (2754) Action Barred in Another State Barred Here.--When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state or country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state."

Affirmed.

Henry Mounger, for appellant.

It is not controverted that the New Orleans Great Northern Railroad Company is a railroad company organized both under the laws of the state of Mississippi and under the laws of the state of Louisiana. That the cause of action accrued on account of an alleged injury resulting from the negligence of the defendant while its train was at Bogalousa in the state of Louisiana. That by the laws of the state of Louisiana the action would be barred by prescription. That more than one year expired before the suit in this case was filed and the question is, under the first assignment of error, whether or not the action having been barred by the statute of limitations in the state of Louisiana, the case can be brought after the expiration of one year in the state of Mississippi. The writer of this brief will ask Mr. F. D. Blue, one of the attorneys for the railroad, to present this point.

T. S. Dale, for appellee.

This suit was instituted by appellee, John Fortenberry, who was plaintiff in the court below, in the circuit court of Marion county, in the state of Mississippi, for personal injuries received in the state of Louisiana. The New Orleans Great Northern Railroad Company, appellant, is a railroad company organized both under the laws of the state of Mississippi and the laws of the state of Louisiana, its line of railway passing through said Marion county, in Mississippi. More than one year had expired since plaintiff received his injuries before the institution of his suit. Defendant, the New Orleans Great Northern Railroad Company, filed a special plea to plaintiff's declaration, in which it plead the statute of limitations of the state of Louisiana, and to this plea a demurrer was filed by the plaintiff, which demurrer was sustained by the court. Appellant contends that the sustaining of this demurrer was error.

In submitting these authorities, we do not for one time concede that plaintiff's cause of action would have been barred by the statute of limitations of the state of Louisiana, should the same apply. The statute of limitations of Louisiana is not at all clear as to this, but we think it well settled that in this case the statute of limitations of this state apply, and not that of the state of Louisiana.

We think this question long since settled beyond dispute by the supreme court of this state. See Schroff v. Lisco, 63 Miss. 213; Wright v. Mordaunt, 77 Miss. 537.

The case of Krogg v. Atlantic & West Point Railroad Company, a Georgia case, reported in 77 Ga. 202, 4 Am. St. Rep. 79, is a case very similar to this case, and one in which this very question was raised and settled in favor of plaintiff appellee herein. Plaintiff Krogg received his injuries in the state of Alabama and instituted his suit for damages in the state of Georgia, the railroad running through both states. Defendant, the Atlanta & West Point Railroad Company, plead the Alabama statute of limitations. The court held that the statute of limitations of Georgia (the place of the forum) governed, and not that of the other state. The court, in passing upon this question in this case, said: "It is insisted that as this injury arose in Alabama, the period of the statute of limitations is that prescribed by the statute of that state. We do not agree with this...