Louisville & Nashville R. R. v. Brantley's Administrator

106 Ky. 849 | Ky. Ct. App. | 1899

CHIEF JUSTICE HAZELRIGG

deliveeed the opinion of the coubt.

In July, 1891, John L. Brantley, while in the service of the appellant, received injuries from which he died within a few hours. In May, 1895, this action was brought by his administrator for damages to his intestate by reason of his pain and suffering. The statute of limitations was ■pleaded, but held by the trial court not to apply, and this is the controlling question in the case. It will be seen that some three years and ten months elapsed from the accrual of the cause of action until the institution of the suit, whereas the section under which the limitation in such actions is fixed provides as follows: “An action for an injury t,o the person of the plaintiff, or his wife, child, ward, apprentice, or servant, or for injuries to person, cattle or stock by railroads, or by any company or corporation; an action for a malicious prosecution, conspiracy, arrest, seduction, criminal conversation or breach of promise of marriage; an action for libel or slander; an action for the escape of a prisoner arrested or imprisoned on civil process, shall be commenced within one year next after the cause of action accrued, and not thereafter.” General Statutes, chapter 71, article 3, section 3; Kentucky Statutes, section 2516.

The words “and not thereafter” are • not found in the corresponding section of the Revised Statutes fixing the limitation of the actions indicated above, and it is contended they were added for the express purpose of precluding the application of the following provision of the General Statute: “If a person entitled to bring any action mentioned in the third article of this chapter dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, the action thereon may be brought by his representative after the expiration of that time, if commenced within one year after his qualification.” General Statutes, chapter 71, article 4, section 3; Kentucky Statutes, scetion 2526.

The “third article” referred to in the section last quoted contains numerous provisions as to the limitation of actions other than the provision fixing the limitation of actions for personal injuries, malicious prosecution, etc.; and it is said there is therefore ample room for the operation of section 3, article 4, as to the limitation of actions. The words “and not thereafter” do not occur in any other of these sections of article 3, and the nature of the actions in these other sections are not such as to demand so speedy a settlement of the issues of the suit, if any were to be instituted.

Inasmuch as it is permissible under our statutes to grant original administration during a period of twenty years after the death of the testator or intestate, the application of the section last quoted to the causes of action mentioned in section 3, article 3, would give, it is argued, a right of action for personal injuries, injuries to cattle, etc., for a period of twenty-one years from the accrual of the cause of action. We can not believe that the Legislature intended to elongate the time for bringing actions on demands of the character indicated to such an unreasonable period. But whether the words “and not thereafter” were added to the section for the purpose of making the limitations as to these actions an exception to the provisions of the subsequent section is at least very doubtful.

In Carden v. L. & N. Railroad Co., (March 25, 1897), [39 S. W., 1027], this court held that, when the action was for the death of the person, the limitation was one year, under the section we have first quoted, and being the same section which controls in this case. The court said in that case: “It is admitted by plaintiff that if the cause of action had accrued to bis intestate in her lifetime, the running of the statute would not be stayed by her death until the grant of administration, but, having begun, would have continued; and it is not easy to see why, on principle, any distinction should be made between the case where cause of action accrued in the lifetime of an intestate and where it does not accrue until after her death. The only reason that can be given why the statute should not run in any case is that there is no person to sue, and no person to whom laches can be imputed. But it seems to us that the reason applies to the one case as well as to the other, and, if an exception is allowed in favor of the one, it ought to be extended to the other.”

From necessity and the reason of the thing, the statute of one year was applied in the Carden case, although logically, as must be admitted, the cause of action did not accrue until after the death of the intestate; and it never accrued to the deceased at all, but to the personal representative. There is no such difficulty in applying the statute in the present case. The cause of action confessedly accrued to the injured person in his lifetime, and confessedly, too, his death did not stop the running of the statute. But, while the addition of these words “and not thereafter” might seem significant as argued, and might, indeed, be held sufficient, if absolutely necessary, to support appellant’s contention that the same period of limitation was intended to 'be prescribed in actions growing-out of the same transaction, yet in view of a construction of the two sections, to be suggested presently, which accomplishes the same result substantially, we do not feel authorized to give the words quoted the importance contended for. To do so would certainly lead us to ignore entirely the provisions of the last section, if they are held to apply; and that they do apply can hardly be denied. It seems to us, however, that the true meaning of the sections, when taken together, is plain enough. Under the first section quoted the limitation is one year from the injury. The death of the injured party does not stop the running of the statute; therefore, unless a personal representative shall qualify within one year from the injury, the action is barred. If he does so qualify, he is given another year within which to bring the actio.n. The last section is entirely silent as to when there is to be a qualification. It permits the personal representative to bring Ms suit after the first year is out, but it in no way affects the question as to when he is to qualify in order to stop the running of the statute. As we have already seen, the bar is complete unless there is a qualification within a year from the accrual of the cause of action. Taking the two sections together, there is, we believe, no difficulty whatever as to the meaning. As we have seen, the death does not stop the running of the statute. This is held in an unbroken line of decisions. Without a qualification, then, the bar is complete. Therefore the qualification, to be effectual, must be within the year, and that, being within the year, the suit may be brought, as the last section says, after the expiration of the year, if commenced within one year after the qualification. No suit can be maintained by one who has waited until the bar is complete before bringing his action. Only his qualification within the year stops the statute from running, and this does stop It under the last section, because the moment he qualifies, that section interposes to give him another year in which to sue.

This action is barred by time, and the case is remanded for judgment accordingly.