8 S.E.2d 890 | W. Va. | 1940
This action was brought in the Circuit Court of Wood County for the purpose of recovering for death by wrongful act. The defendant demurred to the plaintiff's amended declaration, after oyer had been craved of the writ and return and of the entire record in a like proceeding formerly pending in the Circuit Court of Harrison County, and upon overruling the demurrer, the trial court certified the questions thus raised to this Court.
The state of the record, including the allegations contained in plaintiff's amended declaration, rests the demurrer upon the following facts and circumstances:
Plaintiff's decedent died June 4, 1935, from an injury sustained in Tyler County by the explosion of a metal drum containing approximately fifty gallons of highly explosive oil and gas under high pressure belonging to the defendant company and stored in a barn under its direction and supervision. The declaration sufficiently charges that the death of plaintiff's decedent was brought about by the negligence of the defendant company, and shows upon its face that this proceeding was commenced on the sixth day of June, 1938, three years and two days after the plaintiff's alleged right of action accrued. In this state of the record before us, the trial court held that the saving provision contained in Code,
Although there is some conflict of authority as to whether the time fixed in a statute creating a right of recovery for death by wrongful act within which the action shall commence, is a statute of limitation or *279
whether the fixed time is one of the essential elements, the existence of which constitutes plaintiff's right of recovery, the plain preponderance of decided cases favors the doctrine that the time fixed by the statute creating the right is one of the components entering into the plaintiff's right of recovery. 67 A.L.R. 1070. It is conceded that the holdings of this Court place West Virginia among the jurisdictions adhering to the latter doctrine, and that reference to the following cases sufficiently demonstrates this classification. Lambert v.Ensign Mfg. Co.,
The plaintiff below, however, contends that Code,
There are but few reported cases which deal with a saving statute similiar to ours as well as with the question of whether or not a like statute relates to actions for death by wrongful act. The statute under consideration in Western Coal Mining Co. v. Hise et al., 216 F. 338 (Eighth Circuit), involved statutory terminology almost in the exact wording of both the West Virginia statutes. In that case, which arose in the State of Arkansas, in the very brief opinion the statement is made that during its pendency that court had passed upon the same question in Partee v. Railroad Co., 204 F. 970, 123 C. C. A. 292, 51 L.R.A. (N.S.) 721, and that the Supreme Court of Arkansas has done likewise in Anthony v. Railroad Co., *280
It is well to bear in mind the fundamental distinction between the situation when the ground work of a judicial proceeding ceases to exist and the situation when the proceeding is barred by the statute of limitations: in the former instance there simply remains no foundation for judicial action; in the latter the basis for relief continues, but the use of the means of enforcing it may be barred if the lapse of time is affirmatively asserted for that purpose.
It is, of course, clear that Code,
There were no enactments in the United States creating the right of recovery for death by wrongful act until after the British Parliament passed Lord Campbell's Act in 1846. It seems apparent that if the saving clause provision was enacted following the adoption of the statute creating the right of recovery for death by wrongful act, it could be construed as referring thereto. However, if its adoption preceded the adoption of the Lord Campbell's Act, it is difficult to perceive a legislative intention to include non-existent actions for death by wrongful act by implication in its original enactment or in subsequent amendments.
The saving section relating to statutes of limitation, perhaps ante-dated but may be quite easily traced back to the Revised Code of Virginia of 1819, Chapter 128, Section 10, page 490. Substantially the same provision was contained in the Virginia Code of 1849, being Section 18 of Chapter 149. With very slight changes, the provision has remained in effect in West Virginia to the present time.
It therefore is obvious that the saving section at the time of its original enactment could not have been intended to include proceedings for death by wrongful act, even conceding that it might otherwise be read in pari materia with the Lord Campbell's Act. Without making that concession, the fact that the two statutes deal with unrelated subject matters would add weight to the conclusion that it was not the legislative intent to extend *282
the life of the right of action to recover for death by wrongful act. This conclusion, we believe, accords with the holding of this Court in Duncan v. The Federal Union InsuranceCo.,
We are of the opinion that the trial court erred in overruling the demurrer to the plaintiff's declaration.
Furthermore, the saving section has been held not to contemplate voluntary dismissal. Mills v. Indemnity InsuranceCo.,
For the foregoing reasons, the finding of the Circuit Court of Wood County is reversed and it will be so certified.
Reversed and remanded.