Smith v. Eureka Pipe Line Co.

• Decision Date: 07 May 1940
• Docket Number: (CC 625)
• Citation: 122 W.Va. 277
• Court: West Virginia Supreme Court
• Parties: Cora Mae Smith, Admx., etc. v. Eureka Pipe Line Company

122 W.Va. 277

Cora Mae Smith, Admx., etc.

v. Eureka Pipe LineCompany

(CC 625)

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1940.

Decided May 7, 1940.

Limitation of Actions

The provisions of Code, 55-2-18, covering the right to institute a new action within one year after the entry of an order disposing of a pending action not upon the merits, does not grant that right in an action for death by wrongful act brought under Code, 55-7-5 and 6.

Certified from Circuit Court, Wood County.

Action by Cora Mae Smith, administratrix of the estate of A. V. Smith, deceased, against the Eureka Pipe Line Company to recover for the death of A. V. Smith. The trial court overruled the defendant's demurrer, and certifies questions to the Supreme Court of Appeals.

Reversed and remanded.

Stealey & Black, for plaintiff.

Kemble White, A. F. McCue and H. M. Garrett, for defendant.

Kenna, Judge:

This action was brought in the Circuit Court of Wood County for the purpose of recovering for death by wrongful act. The defendant demurred to the plaintiff's amended declaration, after oyer had been craved of the writ and return and of the entire record in a like proceeding formerly pending in the Circuit Court of Harrison County, and upon overruling the demurrer, the trial court certified the questions thus raised to this Court.

The state of the record, including the allegations contained in plaintiff's amended declaration, rests the demurrer upon the following facts and circumstances:

Plaintiff's decedent died June 4, 1935, from an injury sustained in Tyler County by the explosion of a metal drum containing approximately fifty gallons of highly explosive oil and gas under high pressure belonging to the defendant company and stored in a barn under its direction and supervision. The declaration sufficiently charges that the death of plaintiff's decedent was brought about by the negligence of the defendant company, and shows upon its face that this proceeding was commenced on the sixth day of June, 1938, three years and two days after the plaintiff's alleged right of action accrued. In this state of the record before us, the trial court held that the saving provision contained in Code, 55-2-18, permitting actions commenced within due time and abated or dismissed involuntarily to be re-instituted within one year, extended the plaintiff's right of recovery for one year from the date of the dismissal of her Harrison County action, thereby giving rise to the two legal queries included in this certification: (1) Do the provisions of Code, 55-2-18, extend to an action for death by wrongful act, and (2), if so, was the Harrison County action voluntarily dismissed by the plaintiff so that the provisions of that section are not applicable, due to that fact?

Although there is some conflict of authority as to whether the time fixed in a statute creating a right of recovery for death by wrongful act within which the action shall commence, is a statute of limitation or whether the fixed time is one of the essential elements, the existence of which constitutes plaintiff's right of recovery, the plain preponderance of decided cases favors the doctrine that the time fixed by the statute creating the right is one of the components entering into the plaintiff's right of recovery. 67 A. L. R. 1070. It is conceded that the holdings of this Court place West Virginia among the jurisdictions adhering to the latter doctrine, and that reference to the following cases sufficiently demonstrates this classification. Lambert v. Ensign Mfg. Co., 42 W. Va. 813, 26 S. E. 431. See also Hoover's Admx. v. C. & O. R. Co., 46 W. Va. 268, 33 S. E. 224; and note, 67 A. L. R. 1070.

The plaintiff below, however, contends that Code, 55-2-18, applies not only to statutes of limitation but that its language "in any action" renders it inclusive of actions for death by wrongful act. The defendant asserts that the saving provision is entirely unrelated to Code, 55-7-5, 6, and that being so, the plaintiff's right of action ceased to exist at the expiration of two years from the death of plaintiff's decedent. It follows, of course, that if this question is resolved against the contentions of the plaintiff below and in favor of the position of the defendant, the basis of decision has been disposed of before the trial court's second query is reached, the discussion of which then becomes obiter dictum.

There are but few reported cases which deal with a saving statute similiar to ours as well as with the question of whether or not a like statute relates to actions for death by wrongful act. The statute under consideration in Western Coal & Mining Co. v. Hise et al., 216 Fed. 338 (Eighth Circuit), involved statutory terminology almost in the exact wording of both the West Virginia statutes. In that case, which arose in the State of Arkansas, in the very brief opinion the statement is made that during its pendency that court had passed upon the same question in Partee v. Railroad Co., 204 Fed. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721, and that the Supreme Court of Arkansas has done likewise in Anthony v. Railroad Co., 108 Ark. 219, 157 S. W. 394, and that following those opinions, and recognizing the same doctrine, the saving section does not apply to a death by wrongful act proceeding. The Supreme Court of the United States denied a writ of certiorari to review the Circuit Court's decision. 241 U. S. 666. The Kansas Supreme Court, in the case of Rodman v. Missouri Pacific Railroad Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 704, reviewing a number of cases dealing with analogous questions, reaches a like conclusion as does the Appellate Court...