Sherley v. Lotz
| Decision Date | 10 September 1958 |
| Docket Number | No. 4784,4784 |
| Citation | 104 S.E.2d 795,200 Va. 173 |
| Court | Virginia Supreme Court |
| Parties | VIOLET SHERLEY v. PHILIP LEE LOTZ, ADMINISTRATOR OF THE ESTATE OF EDGAR H. LUCK, DECEASED. Record |
Wayt B. Timberlake, Jr., for the plaintiff in error.
George M. Cochran and Philip Lee Lotz (Charles S. Mayfield, on brief), for the defendant in error.
Opinion by CHIEF JUSTICE EDWARD W. HUDGINS. *
It is alleged in the motion for judgment filed by Philip Lee Lotz as administrator upon the estate of Edgar H. Lusk, that the decedent died on or about November 15, 1953, as a result of personal injuries sustained on June 5, 1953, when an automobile in which he was riding as a guest was struck on the highway in Tennessee by an automobile owned and operated by Violet Sherley, the defendant. The court overruled defendant's plea of the statute of limitations and entered judgment on the verdict of the jury for $8,000.00 for plaintiff. From that judgment this writ of error was awarded.
At the time of the accident Edgar H. Lusk and Violet Sherley were residents of the State of Tennessee. In August, 1953, Violet Sherley left Tennessee and moved to Oklahoma. On April 30, 1954, she moved to Waynesboro, Virginia, where on October 5, 1954, this action was instituted against her. The parties will be designated as plaintiff and defendant, according to the positions they occupied in the lower court.
The action is based on § 8236 of the 1950 Supplement to the Code of Tennessee and § 8240 of the Code of 1932. These statutes, introduced in evidence and copied in the record as a part of plaintiff's case, are as follows:
§ 8236 -- 'The right of action which a person who died from injuries received from another, or whose death is caused by the wrongful act, omission or killing by another, would have had against the wrongdoer in case death had not ensued shall not abate or be extinguished by his death but shall pass to his widow, and in case there is no widow to his children or to his next of kin; or to his personal representative for the benefit of his widow or next of kin; where his or her natural parents or parent or next of kin are unknown, then to his or her legally adoptive parent or parents or to the administrator for the use and benefit of the said adoptive parent or parents; the funds recovered in either case to be free from the claims of creditors.'
§ 8240 -- 'Where the person's death is caused by the wrongful act, fault, or omission of another and suit is brought for damages as provided for by Sections 8236 to 8237 inclusive, the parties suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death, consequent upon the injuries received.'
It is conceded that the Tennessee statutes prescribing plaintiff's rights do not create a new cause of action, but merely preserve from abatement or extinguishment the right of action which a person dying from the wrongful act of another would have had against the wrongdoer had death not ensued. It is also conceded that the Tenessee statutes providing for the survival of a right of action for personal injuries in the event of the death of the injured party as a result of such injuries, contain no specific period of limitation in which such action must be brought. The Tennessee court has consistently held that the general statute of limitations of one year from date of injury applies to all actions for personal injuries in that state. Whaley v. Catlett, 103 Tenn. 347, 53 S.E. 131; McDaniel v. Mulvihill, 196 Tenn. 41, 263 S.E.2d 759. See Wilson v. Massengill, 124 F.2d 666.
These facts bring the question of the limitation of the action within the law of the forum. In Norman v. Baldwin, 152 Va. 800, at page 805, 148 S.E. 831, we quoted with approval from 7 Fletcher's Cyc. Corp., pp. 7452-3, as follows:
'Where the statute imposing liability and creating the remedy does not itself limit the time within which a action to enforce it must be brought, but leaves the matter to be governed by the general statute of limitations, the laws of the forum will govern in determining whether an action brought in a state other than that by which the corporation was created is barred, since general statutes of limitation relate to the remedy and have no extra-territorial force.'
Among other authorities so holding see Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 68 A.L.R. 210; 15 CJS, Conflict of Laws, § 22(e) p. 953; 11 Am. Jur., Conflict of Laws, § 194, p. 509.
The decisive question raised is whether the period of limitation of one year from decedent's death, as prescribed in Code § 8-633 (the Virginia Act for wrongful death), or one of the two periods of limitation from the date of the accident, prescribed in Code § 8-24, as it read prior to the 1954 amendment, applies.
The trial court, in overruling defendant's plea, held that the one year period of limitation beginning from the date of death of the injured party (in this case November 15, 1953), as provided in § 8-633, applied. This statute authorizes the personal representative of the decedent designated by § 8-634 to institute against the wrongdoer a separate action, or revive the one begun by the injured party in his lifetime for the benefit of the beneficiaries named. While the statute, strictly speaking, may not create a new cause of action, it continues, transmits or substitutes the right, with certain limitations stated in the cognate statutes, to bring the action which decedent had at the time of his death. Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269; Virginia Electric & Power Co. v. Decatur, 173 Va. 153, 3 S.E.2d 172, dissenting opinion 4 S.E.2d 294; Street v. Consumers Mining Corp. 185 Va. 561, 39 S.E.2d 271, 167 A.L.R. 886, and Seymour v. Richardson, 194 Va. 709, 75 S.E.2d 77, and authorities therein cited.
The right of survival of such an action to the injured party's personal representative is based on the conditions that the amount of recovery may not exceed a specified sum ($25,000.00 on June 3, 1953), and that no recovery shall be allowed for medical expenses, doctors' bills, pain, suffering and mental anguish sustained by the decedent. These statutes, § 8-633 to § 8-640, have no extra-territorial effect. Withrow v. Edwards, 181 Va. 344, 25 S.E.2d 343; Maryland v. Coard, 175 Va. 571, 9 S.E.2d 454. Furthermore, the period of limitation of one year from the date of the death of the injured party is in express terms restricted to actions brought and maintained under them.
Plaintiff evidently knew that he could not institute and maintain this action under the Virginia statutes for wrongful death, nor did he attempt to do so. He based his right of action upon the laws of Tennessee, and, as heretofore stated, introduced the pertinent statutes of Tennessee in evidence as a part of his case. And, in accord with the laws of Tennessee, but contrary to the provisions of the Virginia statutes, he claimed...
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