Gulf & S. I. R. v. Bradley

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment against .appellant for damages alleged to have been sustained by appellee because of the death of her father while in appellant’s employ, caused by the wrongful act of appellant’s servants. The declaration was filed in February, 1913, and alleges that on the 15th day of August, A. D. 1902, W. M. Bradley, appellee’s father, while in appellant’s employ, was killed by reason of the negligence of other of appellant’s employees under such circumstances as rendered appellant liable in damages therefor, and continues: “Plaintiff further says that she was born on the 28th day of February, A. D. 1903, and'is a posthumous child of the said W. M. Bradley above mentioneed; that on September 30, A. D. 1902, a suit was filed in the circuit court of Jones county, Miss., by Lillian C. Bradley, in her own behalf and on behalf of Lorena Y. Bradley, her child, to recover damage's for the injuries sustained by the death of the said W. M. Bradley as set out in this declaration; that on the sanie date — that is, September 30, 1902— a final judgment was rendered in said court against the Gulf & Ship Island Railroad Company, a corporation, and in favor of Lillian C. Bradley and Lo [162] xena Y. Bradley, for the sum of two thousand, five hundred dollars in settlement of the injuries sustained by the said Lillian C. Bradley and the said Lorena Y. Bradley; .and that on November 7, 1902, before the birth of this plaintiff, said judgment was paid to the said Lillian C. Bradley and the said Lorena Y. Bradley. “Plaintiff therefore says that she was not a party to the above-styled suit, in no way interested therein or in the recovery had therein by her mother and sister for their sole benefit, and therefore her rights in the premises were not adjudicated in said suit.” To this declaration a demurrer was interposed by appellant and overruled by the court. Appellant having declined to plead further, a judgment was rendered in favor of appellee for the sum of one thousand two hundred and fifty dollars; that amount having been' agreed on by counsel for both parties as the amount of damages to be awarded in event the court should hold that the demurrer should be overruled. The first ground of the demurrer is that: “The declaration shows that a recovery is sought for an alleged wrongful death, and that the suit was not brought, within the period of one year as was required by the statute in force and effect at the time of the alleged wrongful death.” The right of action for the recovery of damages for the death of a person caused by the wrongful act of another is purely statutory, and at the time of the death of Bradley, and for some years thereafter, was conferred and wholly governed by chapter 65- of the Laws of 1898, one of the provisions of which is that: “Such action shall be commenced within one year after the death of such deceased person.” This provision of the statute contains no saving clause in favor of any person whatever, and the court is without the right to ingraft such an exception upon it. Foster v. Railroad Co., 72 Miss. 886, 18 So. 380. That this statute was amended by chapter 167, Laws of 1908, by [163] eliminating the limitation hereinbefore set out, is immaterial, even if section 97 of the Constitution be left altogether out of view, for the reason that the limitation contained in the law of 1898 was not a limitation of the-remedy merely, but a limitation of the liability itself. In Tiffany on death by "Wrongful Act, section 121, cited with approval in Rodman v. Railroad Co., 65 Kan. 645, 70 Pac. 642, 59 L. R. A. 704, it is said that: “These special limitations differ in some respects from those created by the ordinary statutes of limitations. In-as much as the act which creates the limitation also creates the action to which it applies, the limitation is not merely of the remedy, but is of the right of action itself. The right is given subject to the limitation, and a subsequent change in the period of limitation will not extend the period so as to affect an existing right of action. ’ ’ If the right is enforceable in another jurisdiction than that of the courts of the state which enacted the statute, the right will be enforced subject to the limitation. The statute of limitation need not be pleaded in defense, and, if the declaration shows that the action was not brought within the time limited, it is demurrable. That this limitation is of the liability, and that no exception can be alleged to excuse delay, was evidently the view taken of the statute by both the court and counsel in Pickens v. Railroad Co., 92 Miss. 210, 45 So. 868, for the limitation was there availed of by the demurrer, and not by plea. One of the contentions of counsel for appellee in this connection is that this suit does not come within the limitation prescribed by the statute, for it “is nothing more than a suit by appellee to recover her proportion of the settlement heretofore made of this claim.” By this statement we presume is meant that the suit is not on the •original cause of action, but upon an agreed settlement thereof which has not been fully performed by appellant. Wle are "not called upon to decide this point, for the reas [164] on that the declaration, in clear and unmistakable terms, predicates the appellee’s right to recover, not upon any agreed settlement, but upon the original cause of action; in fact, it discloses that the agreed settlement, if such the judgment heretofore rendered can be termed, was fully performed by appellant. The second ground of the demurrer is as follows: “The declaration shows that long previous to the institution of this suit there has been brought one suit, and that upon said suit there has been had a recovery by parties entitled to sue for the wrongful death for which plaintiff sues, and under the statute there can be no further recovery by any party or partiees for said alleged wrongful death.” The point here raised has been ruled against appellee in Pickens v. Railroad Co., 92 Miss. 210, 45 So. 868, and Foster v. Hicks, 93 Miss 219, 46 So. 533. The statute plainly provides that there ‘ ‘ shall be but one suit for the same death, which suit shall inure for the benefit of all parties concerned.” That appellee was not born at the time the first suit was instituted is wholly immaterial, for the limitation on the number of suits that can be instituted is without exception in favor of any person whatsoever. That some “of the parties concerned” in the recovery contemplated by such suit are not parties plaintiff therein is immaterial. Foster v. Hicks, supra. But it is said by counsel for appellee that for the former judgment to constitute a bar to the present suit it must have been rendered in good faith and without collusion between the parties thereto. Conceding for the ¡sake of the argument that this rule is sound, there is nothing in the declaration which indicates collusion in the rendition of the judgment. The mere fact that it was rendered on tbe same day that the declaration was filed is insufficient for that purpose. For all the court knows, two thousand, five hundred dolldrs was full compensation for the injury sustained. [165] Both grounds of the demurrer are well taken, and it should have been sustained. The judgment of the court below is reversed, the demurrer sustained, and the cause dismissed. Reversed.