Western & A. R. Co. v. Bass
| Decision Date | 27 May 1898 |
| Citation | 30 S.E. 874,104 Ga. 390 |
| Parties | WESTERN & A. R. CO. v. BASS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The right which the statute (Civ. Code, §§ 3828, 3829) gives to the widow to recover for the homicide of her husband when his death results from a crime or from criminal or other negligence, cannot exist until he is actually dead, and the statute of limitations begins to run from the date of his death, and not from the time at which the injury was inflicted which caused the death.
2. The common-law presumption in prosecutions for murder, appeals of death, and inquisitions against deodands, that an injury was not the proximate cause of the death when the death did not occur within a year and a day after the injury was inflicted does not apply to the right of action given by this statute.
Error from city court of Atlanta; H. M. Reid, Judge.
Action by Bayannah Bass against the Western & Atlantic Railroad Company. From a judgment overruling a demurrer, defendant brings error. Affirmed.
Payne & Tye, for plaintiff in error.
Maddox & Terrell, for defendant in error.
On December 12, 1896, Mrs. Bass brought suit against the Western & Atlantic Railroad Company for the homicide of her husband. She alleged in her petition that while her husband was in the employ of the railroad company as engineer he was injured on February 21, 1891, without fault on his part, and that as a result of such injury, which was wholly caused by the fault and negligence of the company, he died on September 30, 1896. The petition fully set forth the circumstances under which plaintiff's husband was injured, the nature of the injuries, his age, amount he was earning, the amount of plaintiff's damages, etc. A demurrer was filed to the petition, upon the grounds (1) that it "shows on its face that the cause of action sued for is barred by the statute of limitations, more than two years having expired before suit was instituted"; and (2) "there is no cause of action set forth in said petition." The demurrer was overruled, and the defendant excepted.
1. Was the plaintiff's right of action barred by the statute of limitations, because her suit was not filed within two years from the date her husband was injured? "Actions for injuries done to the person shall be brought within two years after the right of action accrues." Civ. Code, § 3900. If the plaintiff's husband had sued for the injuries to his person, he must have brought his action within two years from the date such injuries were inflicted. The plaintiff's action, however, was not for injuries done to the person of her husband. She had no right, under the law to sue for such injuries. No one except the husband himself could maintain an action for them. If, however, such injuries resulted in his death, then, under section 3828 of the Civil Code, a right of action accrued to her. That section provides that a widow may recover for the homicide of her husband, and plaintiff's suit is based upon the cause of action therein given her. This statute does not profess to revive the cause of action or the injury to the deceased in favor of his widow, nor is such its legal effect, but it creates a new cause of action in favor of the widow, unknown to the common law. The right of action given by the statute is for the homicide of the husband in all cases where the death results from a crime, or from criminal or other negligence, and is founded on a new grievance, namely, his homicide, and is for the injury thereby sustained by the widow and children, to whose exclusive benefit the damages must inure, as, under section 3829 of the Civil Code, "in the event of a recovery by the widow, she shall hold the amount recovered subject to the law of descents, as if it had been personal property descending to the widow and children from the deceased, and no recovery had *** shall be subject to any debt or liability of any character of the deceased husband." The widow's right of action for the wrongful homicide of her husband cannot exist at all until he is actually dead, and she cannot, as a matter of course, bring suit before her cause of action comes into life. The statute of limitation begins to run from the time the right of action accrues; that is, as soon as the party is entitled to apply to the proper tribunal. Ang. Lim. (6th Ed.) § 42. It is clear, therefore, that the statute of limitations which began to run against the husband from the date his right of action accrued, namely, the time the injuries were inflicted, could not be pleaded against the plaintiff in a suit for his homicide, alleged to have been caused by the same injuries, because she had no right of action until her husband died, and the statute could not run against a right of action before it came into existence. What we now...
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