St. v. Consumers Mining Corp.

• Citation: 185 Va. 561, 39 S.E.2d 271
• Case Date: September 11, 1946
• Court: Supreme Court of Virginia

39 S.E.2d 271

185 Va. 561

STREET .

v.CONSUMERS MINING CORPORATION.

Supreme Court of Appeals of Virginia.

Sept. 11, 1946.

Error to Circuit Court, Tazewell County; A. C. Buchanan, Judge.

Trespass on the case by Laura M. Street, administratrix of the estate of Noah Street, deceased, against the Consumers Mining Corporation, a corporation, for negligently causing the death of deceased. To review judgment for defendant, plaintiff brings error.

Judgment affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

S. H. & G. C. Sutherland, of Clintwood, for plaintiff in error.

Bowen & Gillespie, of Tazewell, and Crockett & Tutwiler, of Welch, W. Va., for defendant in error.

SPRATLEY, Justice.

This is an action of trespass on the case against the Consumers Mining Corporation for negligently causing the death of Noah Street, instituted by the personal representative of Noah Street for the benefit of decedent's widow. The declaration alleged that Street was employed in the mine of the defendant to drill rock by means of compressed air drills; that in performing this work large quantities of silica rock dust filled the air, which Street inhaled from day to day, gradually causing him to contract the disease of silicosis from which he died; and that the defendant was negligent in not providing Street a suitable place in which to work, in not warning him of the danger of inhaling said dust, and in not furnishing him with proper equipment and appliances necessary to protect him from inhaling dust. The defendant pleaded not guilty and filed a plea of limitation that the cause of action alleged did not accrue to the plaintiff at any time with-in one year next before the commencement of the action. The jury, after hearing the evidence and instructions of the court, found for the defendant.

There are several assignments of error; but the principal question for our determination is whether or not a personal representative may bring an action under the "Death by Wrongful Act" statutes of Virginia for the benefit of a beneficiary thereunder where the right of the injured party to bring an action to recover damages for his injuries has been barred at the time of his death. The instruction of the trial court which raises that question reads as follows: "The court instructs the jury that if any act or omission of the defendant caused or contributed to causing Noah Street to contract silicosis, and such act or omission occurred and was completed and had ended so far as Noah Street was concerned prior to October 19, 1941, that is, prior to one year before the death of Noah Street, then this action is barred by limitation and your verdict should be for the defendant."

We need consider only the evidence upon which the instruction is based.

Noah Street became an employee of the Consumers Mining Corporation in 1935. He worked in its mine both as a driller and as a pump operator until September, 1936, when he requested to be taken off the drill, saying he thought that work was harmful to him. His request was granted. Thereafter, until November 18, 1941, he worked as a pump operator, as a repairman, and in some other line of work, but at no time as as a driller. It is not alleged in the declaration nor shown by the evidence that his subsequent employment exposed him to rock dust, or caused, or aggravated, any diseased condition from which he suffered.

X-ray films of the chest of Street were taken in August and October, 1940. These films and his physical symptoms disclosed, in the opinion of medical experts, a definite picture of silicosis. Street's physician told him in August, 1940 that he had rock dust in his lungs. In the opinion of that physician, Street had been suffering from silicosis from 10 to 15 years. There was,

however, no definite evidence to show at what time silicosis was contracted.

The negligent acts charged against the defendant, if committed, were completed and ended before September, 1936, when Street ceased work as a driller. Prior to his employment with the defendant, Street had worked from 1928 as a driller in the same mine for several former owners.

Noah Street died October 18, 1942. No action was brought by him during his life for any alleged injuries occasioned him by the defendant. This action was instituted by the administratrix of his estate on September 5, 1944.^*

The right of Noah Street to bring an action for his alleged injuries accrued when the wrong was done to him and not at the time of the damage. The foundation of his right was the alleged wrong. City of Richmond v. James, 170 Va. 553, 567, 197 S.E. 416, 116 A.L.R. 967. Under Virginia Code, 1942, (Michie), section 5818, that right expired at the expiration of one year next after the right to bring the same had accrued.

The rule that the statute of limitations begins to run from the time of the commission of the wrongful or negligent act is well stated in 17 R.C.L. 764: "Therefore, as a general rule, where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action and is not legally severable from its consequence. The statute then begins to run, and not from the time of the damage or discovery of the injury." See also 34 Am. Jur, Limitation of Actions, section 160 et seq.

In Scott v. Rinehart & Dennis Company, 116 W.Va. 319, 180 S.E. 276, a silicosis case based upon grounds of negligencesimilar to those of this case, it is said in the syllabus by the court: "A cause of action under Code 1931, 55-2-12 (a statute of limitations), arises when the wrong is inflicted. Mere ignorance of the injured person of the actionable wrong does not suspend the operation of the statute."

In discussing the application of a statute of limitations, that court further said:

"The period within which actions of this character must be brought is 'one year next after the right to bring the same shall have accrued, and not after.' Code, 1931, 55-2-12. Curry v. [Town of] Mannington, 23 W.Va. 14; Kuhn v. Brownfield, 34 W. Va. 252, 12 S.E. 519, 11 L.R.A. 700. This statute has come to us from the mother state, being in the Revised Code of Virginia of 1819 chapter 128, section 4, and the Virginia Codes of 1849 and 1860, chapter 149, § 11. The language of the statute has varied slightly since 1819, but not its meaning. Both the Virginia and the West Virginia courts of last resort have consistently held that the right of action accrues when the wrong is committed, and in the absence of some act of concealment by the wrongdoer, the mere ignorance of the injured party of the actionable wrong will not suspend the statute. (Cases cited). * * *

"This construction has been specifically applied in silicosis cases, the Supreme Court of New York holding: 'Cause of action for injuries arises when they are first inflicted, and subsequent development of disease resulting therefrom does not give rise to cause of action.' Wiersycki v. Pratt [& Letchworth] Co., 1934, 151 Misc. 207, 271 N.Y.S. 36. Accord: Michalek v. United States Gypsum Co., 2 Cir., 1935, 76 F.2d 115."

In Felli v. United States Gypsum Company, 244 App.Div. 606, 280 N.Y.S. 836, a silicosis case, the court held that if the act of the defendant was wrongful, its liability became fixed when the act was committed.

An action to recover damages for "wrongful death" was unknown at common law. The common law rule prevailed in Virginia until 1871 (Acts 1870-71, page 27), when a right of recovery was given to the personal representative of the decedent. Virginia Code, 1887, sections 2902, 2903, 2904, 2905, 2906. The Virginia Act substantially embodied the provisions of the English statute known as "Lord Campbell's Act, " which was passed in 1846.

The pertinent and applicable provisions of our present statutes are set out in Virginia Code, 1942, (Michie), sections 5786, 5787, 5788, 5789, and 5790.

Section 5786: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation * * *, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, * * * and to recover damages in respect thereof, then, and in every such case, the person who, or corporation * * * which, would have been liable, if death had not ensued, shall be liable to an action for damages, * * * notwithstanding the death of the person injured, * * *. And any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrongdoer, and may be enforced against his executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death * * *.

"Every action under this section shall be brought within one year after the death of the injured party, notwithstanding the provisions of section fifty-eight hundred and eighteen (Code, 1887, § 2902; 1926, p. 859; 1942, c. 119)."

Section 5787: "Every such action shall be brought by it in the name of the personal representative of such deceased person and within one year after his or her death, * * *"

Section 5788 provides to whom amount recovered shall be paid.

Section 5789 provides how claim to damages under section 5786 may be compromised, and amount received distributed.

Section 5790: "The right of action under sections fifty-seven hundred and eighty-six and fifty-seven hundred and eighty-sev-en, shall not determine, nor the action, when...