Wilson v. Missouri Pac. R. Co., No. LR-912.

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Writing for the Court: LEMLEY
• Citation: 58 F. Supp. 844
• Parties: WILSON v. MISSOURI PAC. R. CO.
• Docket Number: No. LR-912.
• Decision Date: 14 February 1945

58 F. Supp. 844

WILSON
v.
MISSOURI PAC. R. CO.

No. LR-912.

District Court, E. D. Arkansas, W. D.

February 14, 1945.

58 F. Supp. 845

J. Fred Jones, of Little Rock, Ark., for plaintiff.

Henry Donham and Leffel Gentry, both of Little Rock, Ark., for defendant.

LEMLEY, District Judge.

This is an action brought by W. A. Wilson, as administrator of the estate of Charley Bun Wilson, deceased, against the Missouri Pacific Railroad Company, a bankrupt, Guy A. Thompson, trustee. The suit was filed on July 15, 1944, in the Circuit Court of Pulaski County, Arkansas, and was removed to this court. It is alleged in the complaint that plaintiff's intestate was killed on May 10, 1942, as a result of a collision between an automobile owned and driven by him and one of defendant's trains. The plaintiff alleges negligence on the part of the defendant and sets up three alleged causes of action, with only one of which, however, we are here concerned, namely, a claim under the Arkansas statute authorizing recovery for the benefit of the next of kin for death caused by the wrongful act of another, Secs. 1277, 1278 of Pope's Digest of the Statutes of Arkansas 1937.

The complaint shows on its face that suit was filed more than two years after the death of Charley Bun Wilson, but contains allegations to the effect that failure to bring the action within the two years prescribed by the statute resulted from fraudulent representations made to the plaintiff by an agent of the defendant to the effect that the defendant might settle the claim and that the plaintiff had three years within which to bring the suit.

To that part of the complaint wherein an attempt is made to assert a claim for the benefit of the next of kin under the statute above referred to, the defendant has directed a motion to dismiss for failure to state a claim upon which relief can be granted, in that the complaint shows on its face that the suit was not commenced within two years after the cause of action arose.

The Arkansas statute upon which the suit is based reads in part as follows:

"Sec. 1277. Wrongful act causing death. Whenever the death of a person shall be caused by wrongful act, neglect or default, 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 recover damages in respect thereof, then, and in every such case, the person who, or company 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 although the death shall have been caused under such circumstances as amount in law to a felony. Act March 6, 1883, § 1, p. 76.

"Sec. 1278. * * * Provided, every such action shall be commenced within two years after the death of such person."

The defendant contends that under this statute the filing of the suit within the time prescribed thereby is a condition precedent to maintaining the action at all, and that failure to bring the suit within the two years prescribed cannot be waived by the defendant, nor will false representations on its part estop it from raising such question. With this contention the plaintiff takes issue.

In our opinion, the position taken by the defendant must be sustained.

This exact question has not been passed upon by the Supreme Court of Arkansas. However, the statute involved has been construed by that court, and at least one decision has been handed down by it which has a very direct bearing on this case, namely, Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394. In that case Mrs. Irma Anthony, in her own name and as next friend of her two brothers, Victor Peterson and Roscoe Peterson, minors, instituted the action on June 3, 1912, against the railway company to recover damages for injuries received by their father which resulted in his death. They alleged that the plaintiff, Mrs. Anthony, was only 21 years of age and that Victor Peterson and Roscoe Peterson were minors; that their said father, in September, 1909, while in the employ of the railway company, was run over and killed, and that his death was caused by the negligence of the defendant in the operation of its train. The defendant demurred to the complaint on the ground that the suit was not instituted within the two years required by the statute above referred to, and the court sustained the demurrer. It was the contention of the plaintiff that another statute, Sec. 5075 of Kirby's Digest (now Sec. 8939 of Pope's Digest of

58 F. Supp. 846

the Statutes of Arkansas, 1937), providing that persons under disability might bring suit on a cause of action within three years after the disability was removed, was applicable, and that she could maintain the action irrespective of the provision in the statute authorizing recovery for wrongful death, to the effect that any action thereon must be brought within two years. The court held that the three year statute did not repeal the death act, and that since the two statutes related to different subjects there was no necessary repugnance between their provisions, and, inasmuch as the death act created no savings clause for the benefit of persons under disability, the infancy of the plaintiffs at the time of the accrual of the cause of action did not postpone the running of the statute, and that since the complaint showed on its face that the action was not brought within the two years prescribed by the death act, the defendant could avail itself of the objection by demurrer. In the course of its opinion the Court discussed the act at length, and said

"In the case of Earnest v. St. Louis, Memphis & Southeastern Railway Co., 87 Ark. 65, 112 S.W. 141, we held that by the common law the death of a human being could not be made the subject of a civil action, and that where a statutory right of action is given which did not exist at common law and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control. Mr. Tiffany says that, inasmuch as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. Tiffany on Death by Wrongful Act (2d Ed.), § 121.

"Section 6290 of Kirby's Digest now Secs. 1277, 1278 of Pope's Digest of the Statutes of Arkansas 1937 commonly known as Lord Campbell's Act, upon which the claim of the plaintiffs is based, contains the proviso, `that every such action shall be commenced within two years after the death of such person.' Inasmuch as the statute creates no saving clause for the benefit of persons under disability, the infancy of the plaintiffs at the time the cause of action accrued does not postpone the running of the statute. 13 Cyc. 340; Tiffany on Death by Wrongful Act (2d Ed.), §§ 121, 122. It follows that the bringing of the suit within two years from the death of the person whose death has been caused by the wrongful act is made an essential element of the right to sue. As said in the case of The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358: `The time within which a suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition to sue at all.' * * *

"The complaint shows on its face that the action was not brought within the two years required by the statute, and in the case of Earnest v. St. Louis, Memphis & Southeastern Ry. Co. 87 Ark. 65, 112 S.W. 141, we held that the defendant may avail himself of the objection by demurrer. The reason for this is well stated in Hanna v. Jeffersonville Railroad Co., 32 Ind. 113. The court said:

"`It only remains to ascertain whether the point can be raised in this case by demurrer to the complaint. Ordinarily, statutes of limitations must be pleaded, though the facts appear by the averments of the complaint. The reason for this is that usually there are exceptions to statutes of limitations, and the plaintiff should, therefore, have the opportunity of replying to the plea, so that he may show that the case is within any of the exceptions. To compel him to make these averments in the complaint would tend to inconvenient and needless prolixity. But in the case before us there are no exceptions, and, consequently, there is no reason why the defendant should plead the fact. There could be no reply avoiding the plea.'"

In Earnest v. St. Louis, Memphis & Southeastern Ry. Co., 87 Ark. 65, 112 S.W. 141, 143, cited in the Anthony case, the Supreme Court of Arkansas had under consideration a Missouri statute creating a cause of action for wrongful death and providing that "every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of such action shall accrue." Rev.St.Mo.1899, § 2868, Mo. R.S.A. § 3656. The court in the course of its opinion used the following language:

"The Supreme and appellate courts of Missouri hold that the provisions of the Missouri statute above quoted as to the parties who may sue, and the time within which they may sue, are conditions attached to the right itself given by the statute, and not limitations merely. Barker v.

58 F. Supp. 847

Hannibal & St. Joseph R. Co., 91 Mo. 86, 14 S.W. 280; Case v. Cordell Zinc & Lead Min. Co., 103 Mo.App. 477, 78 S.W. 62; Packard v. Hannibal & St. Joseph R. Co., 181 Mo. 421, 80 S.W. 951, 103 Am. St.Rep. 607

"The general rule is that where a cause of action does not exist at common law, but is created by the statutes of a state, it only exists in the manner and form and for the length of time prescribed by the statutes of the state which created it. Finnell v. Southern Kan. Ry. Co., C.C., 33 F. 427.

"The rule has been announced and approved in the following cases: Munos v. Southern Pac. Railroad, 5 Cir., 51 F. 188; Theroux v....