Murray v. Atlantic Coast Line Railroad

146 S.E. 801 | N.C. | 1929

Civil action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect or default of the defendant.

It appears from the face of the complaint that the wrongful death complained of occurred on 21 January, 1921; that George L. Wimberly, Jr., first qualified as administrator of the estate of the deceased and began an action in the Superior Court of Nash County on 20 January, 1922, under the Federal Employer's Liability Act, for the same cause of action, as herein alleged, and against the same defendant; that thereafter on 26 September, 1927, said action was dismissed, as in case of nonsuit, upon certificate from the Supreme Court of the United States to the Supreme Court of North Carolina duly certified to the Superior Court of Nash County (Wimberly v. R. R., 190 N.C. 444, and273 U.S. 673); and that the present action was instituted 18 August, 1928, and is likewise sought to be maintained under the Federal Employer's Liability Act.

A demurrer was interposed by the defendant upon the ground that the cause of action alleged in the complaint did not accrue within two years next preceding the institution of the action.

From a judgment sustaining the demurrer the plaintiff appeals, assigning error. after stating the case: The demurrer was properly sustained on authority of Belch v. R. R., 176 N.C. 22, 96 S.E. 640. Section 6 of the Federal Employers' Liability Act provides, among other things, "That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued," etc. There is no provision in this statute for extending the time within which suit may be brought by reason of a pending or former action and nonsuit suffered or entered therein. See, also, Capps v. R. R., 183 N.C. 181, 111 S.E. 533.

Affirmed.