56 Tenn. 829 | Tenn. | 1872
Lead Opinion
delivered the opinion of the Court
The question arises upon the plea of the Statute of Limitations. The action is by a personal representative, under Section 2291 of the Code, as follows: “The right of action, which a person, who dies from injuries received from another, or whose death is caused by the wrongful act or omission of another, would have had against the wrong-doer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representative for the benefit of his widow and next of kin, free from the claims of creditors.” There is no Statute of Limitation made expressly applicable to this class of cases.. But Section 2772, in the Article prescribing the limitation of personal actions, provides that actions for personal injuries shall be commenced within one year after the cause of action accrued. It is manifest that if the injured party commence the action in his lifetime, this Statute would be applicable. And it is equally manifest, that the action is for the same cause, whether brought by the injured party himself in his lifetime or by his representative after death — ■ so that one year after the cause of action accrued is the limitation. But the question is, When does the
It is apparent, that, under this Statute, cases often arise, where the injured party lives a time after the injury, and then dies of the injury. And many other cases occur, where death is, in the common acceptation of the term, instantaneous.
In the first class of cases, where the injured party lives a time, it would seem clear that the cause of action accrued when the injury was received, or at the time of the wrongful act or omission. If in such cases an action be brought in the lifetime of the party, and a recovery be had, or a settlement and a release of the claim, or accord and satisfaction, and the party afterwards die of the injury, his representative certainly could not then sue and recover. Shear. Red. Neg., Sec. 301.
This being so, the only ' question remaining is, Whether there is any distinction between cases where the injured party lives a time, and cases where the death is instantaneous? There is certainly no such distinction indicated in the Statute, — both classes of cases are put upon the same footing.
- The purpose seems simply to have been to repeal that rule of the Common Law, that actions for personal injuries die with the person, in those cases where the injured party dies of the injury: — but, whether the action be brought by the party himself or. his representative after his death, the cause of action is the same and is governed by the same laws. To show this conclusively, it is only necessary to refer to Sec.
The argument against this view is, that the action allowed by this Statute is a new action given to the ¡personal representative; an action which the injured party could not have maintained. That the action is given to the personal representative, on account of the death of the injured party. That his death is the cause of action, and this of course could not accrue to the injured party himself, but only accrues to his representative, and could not accrue to him until his appointment. This argument, though plausible, is not sound. As we have seen, the Statute is equally applicable to cases where the injured party lives a time, and to cases where death is instataneous. Where the injured party lives a time after the injury, he has a right of action without the Statute. If an action be brought by the . party himself, and he then dies of the injury, before judgment, the effect of the Statute is to prevent an abatement, and to .allow the cause to proceed notwithstanding the death; but not on account of the death. The cause of action was the injury. And in such cases, the action, after the death, is prosecuted for the same cause for which it was brought, and is the same action. In cases where no action is brought by the injured party himself, the Statute allows the action to be brought by the representative. This could not have been done at the Common Law, and it is therefore, in this sense, a new
The general rule is, that if a cause of action accrue in the lifetime of a party, the Statute of Limi--tation begins to run and is not suspended during the time that elapses between his death and the appointment of his representative. Angelí on Limitations, Sec. 56.
It is different if the cause of action does not accrue until after the death; then, in general, the Statute does not begin to run until the appointment of a representative. Angell on Limitations, Chap. VII; Thurman v. Shelton, 10 Yerg.
The argument is, that the cause of action in cases of instantaneous death, could not accrue to the party in his lifetime, and it is true that for practical purposes it could not; but, upon the theory that there is no such thing literally as instataneous death, the cause of action might be held to accrue to the party in his lifetime, though he should die before he could possibly bring an action. But at any rate, no distinction is made in the Statute between the two classes of cases. When the injured party lives long enough, it is clear the action accrues to him, and the Statute begins to run. We are not authorized to establish a different rule where the death is, in the common acceptation of the term, instantaneous. We could not determine how soon after the injury death should occur, in order to take the case out of the other rule.
It is true that some of the cases seem to have
We have found no authority that we regard as controlling; the decisions of other States being founded upon their own Statutes, which are not identical with curs. The case of Whitford v. The Panama R. R. Co., 23 New York, is founded upon the New York Statute, and conceding that the Statute of that State is substantially the same as oürs, it seems to us that the reasoning of Chief Justice Comstock, in the dissenting opinion, is far more convincing and satisfactory. Upon a contrary holding, an action might be brought twenty years after the injury or death of the party.
Judgment should be affirmed.
Dissenting Opinion
DISSENTING OPINION,
Delivered by
The plaintiff’s intestate was mortally injured by the defendant's train on the 31st of January, 1867,
The Court, it is true, can make no exceptions to the Statute which have not been made by the Statute itself. But it is, nevertheless, the duty of the Courts so to construe Statutes of Limitations as to secure and subserve a meritorious right and remedy, rather than defeat and destroy them. We might suppose a case where the injured party survives his wounds just one hour, and, according to the strict rule, at the moment of his death the Statute has been running one hour, and his representative is qualified just one year after the injury is inflicted, and one year and one hour after the Statute has begun to run. According to the strict rule contended for, a meritorious cause of action is thus defeated, when the intestate himself was, from his physical prostration, utterly incapable of sue-
The term, cause of action, implies not only a right of action, but, also, that there is some person in existence who is qualified to institute process. Where -there is no person to sue, no laches can. be implied; and applying in such case the Statute of Limitations, would be extreme injustice, and contrary also to the conclusions of reason. Ang. Lim., 45; Sherman v. Western Stage Co., 24 Iowa, 517.
The Statute of Limitations is a canon of repose, and is predicated upon the idea of laches in the party •upon whom the right of action falls. How can laches be imputed to a dying man ? To one who, having received a mortal injury, simply abides the period of his dissolution? How can such an one, even assuming that his mental faculties be clear, be onerated with the assertion of a legal ‘ demand in the Courts of justice, just as.he is entering the portals of Eternity?
I can not concur in the opinion of a majority of the Judges in this case.
Post, 841.
Dissenting Opinion
DISSENTING OPINION,
DELIVERED BY
The question in this case arises upon the construction of Section 2291 of the Code, and is, Does the-Statute of Limitations of one year, for the recovery of damages for injury to the person, apply to the present action ?
I concur in the conclusion of Judge Sneed, in an opinion prepared in this case at the last Term of the-Court; and, as an additional reason, in support of its. correctness, hold, that the Act in question creates a new and distinct ground of suit; and, in repealing the-rule of the Common Law, gives a cause for suit and-
While the husband and father lives, there is no right of action in the wife and children. The right only accrues at his death, and then, only, for the consequences resulting to them from such death. If the husband and father being injured, linger for more than twelve months without bringing suit and then' die, I do not think that the doctrine, that more than- one year, from the injuries to the death having elapsed, will bar the right to sue for the benefit of the widow and children, can be maintained; for the .very strong reason, that no such right existed during that time. Time never runs against that which has no existence. A right of action must first accrue to and vest in a 'party before time can commence to operate against it or destroy it.
If the party injured recover permanently, he may still sue for the injuries to the person. If, however, after the suit is brought, he die from other causes, although within a year after the injuries were received, no right of action passes to the personal representative for the benefit of the family of the deceased. The
For the mutilation, disfigurement, and deformity to the parly injured, the wife and children can maintain no suit — the party injured, while living, may. He may 'exhibit these things in aggravation of the damages. But- his death puts an end to them, as facts, for the consideration of Courts and juries: — for the obvious reason that, in injuries to the person, these things constitute the ground of suit: — while, in suits like the present, the sole inquiry is, Did the death result from the injury? If it did, What is the measure of damages? In the estimate of damages, it can make no difference, whether the injury mangled and disfigured, or left not the slightest mark of violence. The one action is for the wrongs to the person, immediate and direct, and, under proper rules of pleading, is trespass. The other is for wrongs consequential and. r’emote, and should be case.
By the Statute it is not the action which passes to. the representative, but the right of action; nor is it the action which does not abate, but the right of action.
That the Legislature intended to create a new right of action is further made manifest in the Provision, that the recovery shall be for ¿he benefit of the widow and next of kin, free from the claims of creditors.
I am of opinion that this is- not an action for injuries to the person, and that the Statute of Limitations of one year does not apply.