Larue v. C. G. Kershaw Contracting Co.

SOMERVILLE, J. The action is one brought by an administrator against the defendant corporation for injuries wrongfully done to plaintiff’s intestate in the state of Tennessee, which injuries are alleged to have resulted in death. The suit is prosecuted in Alabama, where the defendant resides, and is based, in both counts, on sections 4025, 4026, and 4029 of the Tennessee Code, which are as follows: “Sec. 4025. The right of action which a person who dies from injuries received from another or whose death is caused by the wrongful act, omission or killing by another, would have had against the wrongdoer in case death had not ensued shall not abate or be extinguished by his death, but shall pass to his widow, and in case there is no widow, to his children or to his personal representative for the benefit of his widow or next of kin, free from the claims of creditors. “Sec. 4026. The action may be instituted by the personal representative of the deceased, but if he decline it, the widow and children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit on giving bond and security for cost, or in the form prescribed for paupers. The personal representative shall not in such case be responsible for costs, unless he sign his name to the prosecution bond.” “Sec. 4029. Where a person’s death is caused by the wrongful act, fault or omission of another and suit is brought for damages, as provided by sections 4025 and 4027 inclusive, the 'parties suing shall, if entitled to — 444 — damages, have the right to recover for the mental and physical suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death and consequent upon the injuries received.” The only question presented by this appeal relates to the statute of limitations specially pleaded by defendant in bar of the action, viz.: Is the cause of action, as defined by the Tennessee statutes, barred by the Alabama statute of limitations of one year, which reads as follows: “4840. Limitation of one year.— Within one year — (5) Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated.” It is conceded that no other limitational provision is applicable to this action, unless it be the concluding paragraph of section 2486 of the Code (the Homicide Act),.which declares that “such action must be brought within two years from and after the death of the testator or intestate” ; or section 4839 of the Code, which is as follows: “4839. Limitation of two years. — Action by representative to recover damages for wrongful act, omission or negligence causing death of the decedent, under sections 2486 and 2485.” Appellant’s contention is that the period of limitation is fixed by these sections, and not by section 4840. The present action is brought in this state by authority of an act of the Legislature approved November 23, 1907, which provides that causes of action arising in other states against persons' or corporations shall be enforceable in the courts of this state as if the cause of action had arisen here, when jurisdiction of the defendant can be legally obtained. Special Acts 1907, p. 67. — 445 — It is not denied the lex fori, and not the lex loci, is to govern in this case, as the statute of limitations here goes only to remedy.—Jones v. Jones, 18 Ala. 248; Galliher v. State, etc., Ins. Co., 150 Ala. 543, 43 South. 833, 124 Am. St. Rep. 83. These cases involved actions on contracts, but the principle is everywhere applied also to actions in tort.—27 Cyc. 1020, and cases there cited. It is a rule not questioned that the statute of limitations begins to run in favor of the defendant from the time the plaintiff’s cause of action accrues, unless some recognized exception postpones its operation. And a cause of action accrues as soon as the party aggrieved is entitled to begin and prosecute such action. The complaint shows that the injury in this case occurred on May 11, 1910, and the action was begun on July 18, 1911. We have given due consideration to appellant’s contention that this case is governed by the limitation of two years, as prescribed by sections 2486 and 4839 of our Code, and conclude that it is clearly untenable. Those statutes are restricted in their application ex vi terminorum to actions brought under sections 2486 and 2485 of the Code, and the application thus limited cannot be extended to other cases without doing violence to the plain language and purpose of the statutes themselves. The Tennessee statutes above quoted create no new and independent cause of action, but in express terms merely continue a cause of action which accrued to the injured person, so that-it does not abate by his death, but survives to his 'widow, children, or personal representative. The cause . Non is not the death of the person injured, but the breacli of duty that caused the injury; and, if death results, this is but an aggravation of the injury. This is the view — 446 — taken of these statutes by the Supreme Court of Tennessee in Fowlkes v. N. & D. Rwy. Co., 5 Baxt. (Tenn.) 663, and it was there held that a general statute of limitations, providing that actions for personal injuries should be commenced within one year after the cause of action accrued, was applicable to an action thereunder; the statute beginning to run from the breach of duty or the initiation of the injury. That case is cited with approval in the case of Williams v. A. G. S. R. R. Co., 158 Ala. 396, 48 South. 485, 17 Ann. Cas. 516, and its reasoning is there applied, with the same result, to our Employer’s Liability Act (sections 3910-3912, Code 1907). As will be seen by reference to Justice Denson’s opinion in the Williams Gase, supra, the Tennessee statutes cannot be distinguished in this important respect from our statutes (sections 3910-3912); 'and the further similarity may be noted that under both sets of statutes the damages recoverable are compensatory, and not punitive as they are under our Homicide Act (section 2486 of the Code). The present action is not brought under our Homicide Act, but under Tennessee statutes strikingly different in language, purpose, and effect; and we cannot by any rational process apply to this action statutes of limitation which by their express terms exclude such an application. On the other hand, subdivision 5 of section 4840 was plainly intended to cover all cases of a personal injury not otherwise expressly provided for. And, this, being as we have seen an action for personal injury, not brought under section 2486 of the Alabama Code,, and not assimilable to the action for death thereby created and conferred on the representative, we are clear in the conclusion that it is governed by the limitation of one year. — 447 — Appellant argues, however, that even so it is not a good- plea to this action, by reason of section 4854 of the Code: “The time between the death of a person and the grant of letter testamentary or of administration, not exceeding six months, is not to be taken as any part of the time limited for the commencement of actions by or against his executors or administrators.” Under the construction given this statute, it seems that, even though the statute of limitations had begun to run against a decedent prior to his death, its operation is suspended for a period of not less than 15 days, and until letters are granted to the personal representative within the limit of 6 months — the maximum period of suspension.—McNeill’s Adm’r v. McNeill, 35 Ala. 30; Pickett v. Hobdy, 63 Ala. 609; Brown v. Mize, 119 Ala. 10, 24 South. 453. The section quoted creates, therefore, in favor of personal representatives an exception to the general rule that, when the statute once begins to run, it is not suspended by intervening disabilities of the plaintiff, or his privies in interest. But, so far as the pleadings here show, the administrator may well have been appointed before June 1, 1910; and, if letters of administration were granted to him at any time prior to July 18, 1910, his action would still be barred by the one year limitation. As said in Morrison v. Stevenson, 69 Ala. 448, “a party insisting on an exception to the bar of the statute of limitations must point out the exception and bring himself within its saving terms.” This is a rule of pleading, and, in order to avoid the effect of defendant’s plea setting-up this limitation, it was necessary for plaintiff to reply to the plea and show such facts as would, under section 4854, suspend the operation of the statute for such a period as would reduce the time to be counted against him to less than the term of a year.—Richard — 448 — son v. Mertins, 175 Ala. 309, 57 South. 720; 25 Cyc. 1415, D. 2. It results that the demurrer to defendant’s plea was properly overruled', and the judgment must be affirmed. Affirmed. All the Justices concur.