96 N.J.L. 197 | N.J. | 1921
The opinion of the court was delivered by
This was an action brought May 14th, 1920, to recover damages for an injury to the plaintiff, a locomotive fireman, while engaged in interstate commerce, in the employ of a steam railroad then also engaged in interstate commerce. The injury happened April 22d, 1916, and the question raised in the case is whether or not the action can be maintained. More than two years had elapsed, and it cannot he maintained unless the effect of the Federal Employers’ Liability act is modified by the provision of the act of congress of February 28th, 1930, section 306 (/). The material portion provides as follows: “The period of
The question is the true meaning of tire word “limitation.” That meaning is somewhat ambiguous. It may mean, as it generally does when used in connection with actions at law, the time within which an existing cause of action must be prosecuted, a limitation on the remedy, or it may mean a limitation on the definition and the extent of the cause of action itself, a limitation on the liability.
The Harrisburg, 119 U. S. 199; Phillips v. Grand Trunk Railway, 236 Id. 662; Central Vermont Railway v. White, 238 Id. 501; Atlantic Coast Line v. Burnette, 239 Id. 199; Louisville Cement Co. v. Int. Com., 246 Id. 638. The lapse of the statutory time in one case forever bars an already existing action; in the other case no action ever exists mil ess it is brought within time; that it should be brought within time is an essential part of the cause of action, of the very definition pf the right itself. Compliance with the statute must he averred in the pleading (Lapsley v. Public Service Corporation, 75 N. J. L. 266), because it is a paid of the definition; and lapse of time will'be fatal even though not pleaded. Atlantic Coast Line Railroad v. Burnette, supra, 239. Tire one statute provides a limitation on an already existing right; the other provides for a time within which an inchoate right becomes actual by the bringing of suit. Wé must, however, assume that congress meant to be just. And if the power to turn the inchoate into an actual right had been hampered or taken away by federal control, there would be some reason for holding that the period of federal control ought to be deducted from the two years as well as from the six year period. Such is not the case. Congress and the president were careful to save the right to sue. By the president’s proclamation under the act of 1916, by the act of March 21st,
For affirmance—The Chancellor, Kalisch, Black, JJ. 3.
For reversal—The Chibe Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Katzenbach, White, Heppen-HEIl-LER, WlIXTAilS. GARDNER, JJ. 11.