Partee v. St. Louis & S.F.R. Co.

Decision Date25 April 1913
Docket Number3,849.
Citation204 F. 970
PartiesPARTEE v. ST. LOUIS & S.F.R. CO.
CourtU.S. Court of Appeals — Eighth Circuit

G. W Hutchins, of Tulsa, Okl. (J. J. Henderson, of Tulsa, Okl., on the brief), for plaintiff in error.

Fred E Suits, of Oklahoma City, Okl. (W. F. Evans, of St. Louis Mo., and R. A. Kleinschmidt, of Oklahoma City, Okl., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and WILLIAM H. MUNGER and TRIEBER District Judges.

SANBORN Circuit Judge.

This is an action for the death of William McCain, which is alleged to have been caused by the wrongful act of the St. Louis & San Francisco Railroad Company. The action was not commenced within two years after the wrongful act or the death; but the plaintiff had commenced a similar action within the two years, had failed in that action otherwise than upon the merits, and had commenced this action within one year after the failure. He set forth these facts in his pleading, and the court below sustained a demurrer to it, and dismissed the action. This ruling is assigned as error.

Article 3, which is entitled 'Time of Commencing Civil Actions,' of chapter 87 of Snyder's Compiled Laws of Oklahoma of 1909, contains these provisions:

'Section 5547. Limitations.-- Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.'
'Section 5555. New Action-- Limitation.-- If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure.'

Article 17, which is entitled 'Causes of Action Which Survive, and Abatement of Actions,' contains this provision:

'Section 5945. Action for Death-- Limitation, etc.-- When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.'

The complaint in this court is that the court below held that section 5555 was inapplicable to this action, and that it could not be sustained because the plaintiff failed to comply with the condition of its maintenance fixed by section 5945, which created it, failed to commence his action within two years of the wrongful act or death. In support of this complaint counsel argue that section 5555 is general in its terms and without exception, and that it should be held to apply to this and every action which is commenced within due time, wherein a judgment is reversed or the plaintiff fails on the merits after the time limited has expired, and he brings a new action within one year after the reversal or failure. In support of this contention they cite, and we have carefully read and considered, the opinions of the courts in Meekins v. Norfolk & S.R. Co., 131 N.C. 1, 42 S.E. 333, Kenney v. Parks, 137 Cal. 527, 70 P. 556, Swift & Co. v. Hoblawetz, 10 Kan.App. 48, 61 P. 969, and Trull v. Seaboard Air Line Ry. Co., 151 N.C. 545, 66 S.E. 586, 587. But by the common law no civil action lies for an injury which results in death. Insurance Company v. Brame, 95 U.S. 754, 757, 24 L.Ed. 580. The only foundation for this action is section 5945. In the absence of that section the plaintiff could have no action, and the defendant would have been exempt from liability for the death of McCain.

A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it...

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