
    H. P. Fowlkes, Adm’r v. Nashville & Decatur Railroad Company. 
    
    I. Injuries Kesulting in Death. Statute. Gonstmetion. The Statute makes no distinction between the cases, where the injured party lives a time, and where death is instantaneous. The cause of. action accrues at the date of the injury and is the same, whether brought by him during life, or by his personal representative after death.
    Code cited: Section 2291,
    2. Same. The purpose of the Statute was simply to repeal the Common Law rule, that actions for personal injuries die with the person, when death results from the injury.
    8. Same. Statute of Limitations. The Statute of Limitations begins to run from the moment of the injury, and is not suspended by the lapse of time between the death and the qualification of the personal representative.
    Code cited: Section 2772.
    4. Same. Damages. Damages may, in a proper case, where the action is brought by the party himself, be given to the same extent as if death had ensued: e. g. where the party is permanently disabled.
    Code construed: Sections 2291 and 2772.
    Case cited: Thurman v. Shelton, 10 Yerg., 383.
    EEOM "WILLIAMSON.
    ■ Appeal in error from the judgment of the Circuit Court, July Term, 1872. William: P. Maetin, J.
    
      N. N. Cox, T. W. Turley, For Appellant.
    David Campbell, John B. McEwen, T. W. D. Bullock, For Appellee.
   McFarland, J.,

delivered the opinion of the Court

—Justices Sneed and Turney dissenting.

The question arises upon the plea of the Statute of Limitations. The action is by a personal representative, under Section 2291 of the Code, as follows: “The right of action, which a person, who dies from injuries received from another, or whose death is caused by the wrongful act or omission of another, would have had against the wrong-doer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his personal representative for the benefit of his widow and next of kin, free from the claims of creditors.” There is no Statute of Limitation made expressly applicable to this class of cases.. But Section 2772, in the Article prescribing the limitation of personal actions, provides that actions for personal injuries shall be commenced within one year after the cause of action accrued. It is manifest that if the injured party commence the action in his lifetime, this Statute would be applicable. And it is equally manifest, that the action is for the same cause, whether brought by the injured party himself in his lifetime or by his representative after death — ■ so that one year after the cause of action accrued is the limitation. But the question is, When does the cause of action accrue ? And when does the Statute begin to run?

It is apparent, that, under this Statute, cases often arise, where the injured party lives a time after the injury, and then dies of the injury. And many other cases occur, where death is, in the common acceptation of the term, instantaneous.

In the first class of cases, where the injured party lives a time, it would seem clear that the cause of action accrued when the injury was received, or at the time of the wrongful act or omission. If in such cases an action be brought in the lifetime of the party, and a recovery be had, or a settlement and a release of the claim, or accord and satisfaction, and the party afterwards die of the injury, his representative certainly could not then sue and recover. Shear. Red. Neg., Sec. 301.

This being so, the only ' question remaining is, Whether there is any distinction between cases where the injured party lives a time, and cases where the death is instantaneous? There is certainly no such distinction indicated in the Statute, — both classes of cases are put upon the same footing.

- The purpose seems simply to have been to repeal that rule of the Common Law, that actions for personal injuries die with the person, in those cases where the injured party dies of the injury: — but, whether the action be brought by the party himself or. his representative after his death, the cause of action is the same and is governed by the same laws. To show this conclusively, it is only necessary to refer to Sec. 2293, which in terms provides that if the action be brought by the party in his lifetime, it shall continue after his death, without revivor, — showing that in either case the action is essentially the same.

The argument against this view is, that the action allowed by this Statute is a new action given to the ¡personal representative; an action which the injured party could not have maintained. That the action is given to the personal representative, on account of the death of the injured party. That his death is the cause of action, and this of course could not accrue to the injured party himself, but only accrues to his representative, and could not accrue to him until his appointment. This argument, though plausible, is not sound. As we have seen, the Statute is equally applicable to cases where the injured party lives a time, and to cases where death is instataneous. Where the injured party lives a time after the injury, he has a right of action without the Statute. If an action be brought by the . party himself, and he then dies of the injury, before judgment, the effect of the Statute is to prevent an abatement, and to .allow the cause to proceed notwithstanding the death; but not on account of the death. The cause of action was the injury. And in such cases, the action, after the death, is prosecuted for the same cause for which it was brought, and is the same action. In cases where no action is brought by the injured party himself, the Statute allows the action to be brought by the representative. This could not have been done at the Common Law, and it is therefore, in this sense, a new and Statutory action. But it is brought for the same cause as if the injured party had himself brought the action.

The general rule is, that if a cause of action accrue in the lifetime of a party, the Statute of Limi--tation begins to run and is not suspended during the time that elapses between his death and the appointment of his representative. Angelí on Limitations, Sec. 56.

It is different if the cause of action does not accrue until after the death; then, in general, the Statute does not begin to run until the appointment of a representative. Angell on Limitations, Chap. VII; Thurman v. Shelton, 10 Yerg.

The argument is, that the cause of action in cases of instantaneous death, could not accrue to the party in his lifetime, and it is true that for practical purposes it could not; but, upon the theory that there is no such thing literally as instataneous death, the cause of action might be held to accrue to the party in his lifetime, though he should die before he could possibly bring an action. But at any rate, no distinction is made in the Statute between the two classes of cases. When the injured party lives long enough, it is clear the action accrues to him, and the Statute begins to run. We are not authorized to establish a different rule where the death is, in the common acceptation of the term, instantaneous. We could not determine how soon after the injury death should occur, in order to take the case out of the other rule.

It is true that some of the cases seem to have introduced a new element of - damages in eases where the action is brought by the representative; that is, damages for the loss of the society, etc., etc., of the husband, father, or relative, to the widow or next of kin. That in such cases damages might be allowed, beyond what would be proper where the action is brought by the party himself. Some of these cases stand upon doubtful grounds; but even where the action is brought by the party himself, damages might, in a proper case, be given, to the same extent as if death had ensued: i. e., where the injury disables the party for life; in such a case, the injury, in a pecuniary sense, would be the same as if death had ensued.

We have found no authority that we regard as controlling; the decisions of other States being founded upon their own Statutes, which are not identical with curs. The case of Whitford v. The Panama R. R. Co., 23 New York, is founded upon the New York Statute, and conceding that the Statute of that State is substantially the same as oürs, it seems to us that the reasoning of Chief Justice Comstock, in the dissenting opinion, is far more convincing and satisfactory. Upon a contrary holding, an action might be brought twenty years after the injury or death of the party.

Judgment should be affirmed.

DISSENTING OPINION,

Delivered by

Mr. Justice Sneed.

The plaintiff’s intestate was mortally injured by the defendant's train on the 31st of January, 1867, and died of said injuries a few days afterward. He left a widow and children, but, there was no administration on his estate until about the 26th of January, 1870, nearly three years after 'the injury which resulted in his death. The plaintiff was qualified as administrator on. the 26th of January, 1870, and this action was instituted on the day afterwards. The chief question raised by the pleadings is, Whether the Statute of Limitations of one year, which applies to an action of this character, began to run from the moment of the injury, or from the moment of the qualification of the administrator? This depends upon the proper •construction of our Statute, which abrogates the rule of the Common Law, that “personal actions die with the person,” and gives the action in such eases to the administrator of the person, who dies from such injury, for the benefit of his widow and next of kin. The Statute under which the right of action accrued, in this case is in these words: The right of action, which a person, who dies from injuries received from another, or whose death is caused by the wrongful ■act or omission of another, would have had against ■the wrong-doer, in case death had not ensued, shall not abate or be extinguished by his death; but shall pass to his personal representative, for the benefit of his widow and next of kin, free from the claims of his creditors.” Code, Section 2291. In other sections of the Code it is provided that actions, for injuries to the person, shall be commenced within one year after the cause of action has accrued. Code, Secs. 2769, 2772. As applied to cases of this kind, the question is one of much difficulty. The general rule is, that when-the Statute begins to run in the lifetime of the intestate, his death does not stop it. As applied to-actions ex contractu, we 'can easily appreciate the wisdom of this rule; but as applied to cases of this kind, where the intestate is by the injury mortally hurt; when, perhaps, bereft of both physical and mental capacity, he merely languishes to his death, the consequences of such a rule would be not only harsh, but contrary to reason. It is manifest that the Legislature intended to create an entirely new right of action, to redress the grievance and injury inflicted by the homicide itself, for the benefit of those to whom the life of the deceased was valuable: — the gravamen being the consequential injury to the widow, children, or next of kin, resulting from the homicide itself.

The Court, it is true, can make no exceptions to the Statute which have not been made by the Statute itself. But it is, nevertheless, the duty of the Courts so to construe Statutes of Limitations as to secure and subserve a meritorious right and remedy, rather than defeat and destroy them. We might suppose a case where the injured party survives his wounds just one hour, and, according to the strict rule, at the moment of his death the Statute has been running one hour, and his representative is qualified just one year after the injury is inflicted, and one year and one hour after the Statute has begun to run. According to the strict rule contended for, a meritorious cause of action is thus defeated, when the intestate himself was, from his physical prostration, utterly incapable of sue--ing during the brief interval of life left him after 'the injury was inflicted. Certainly the law does not •contemplate such consequences . as these. The observation, which we find in one of the cases, that the •decisions on this subject -are so conflicting, or rather so controlled by particular circumstances, that no inflexible rule can be extracted therefrom, is specially applicable to personal actions of this character. And we think the rule stated by Mr. Bouvier is the sound one: — that if, when the right of action would other-, wise accrue and the Statute begin to run, there is no person who can exercise the right, the Statute does not begin to run until there is such person. 2 Bouv. L. D., 58; 10 Yerg., 383.

The term, cause of action, implies not only a right of action, but, also, that there is some person in existence who is qualified to institute process. Where -there is no person to sue, no laches can. be implied; and applying in such case the Statute of Limitations, would be extreme injustice, and contrary also to the conclusions of reason. Ang. Lim., 45; Sherman v. Western Stage Co., 24 Iowa, 517.

The Statute of Limitations is a canon of repose, and is predicated upon the idea of laches in the party •upon whom the right of action falls. How can laches be imputed to a dying man ? To one who, having received a mortal injury, simply abides the period of his dissolution? How can such an one, even assuming that his mental faculties be clear, be onerated with the assertion of a legal ‘ demand in the Courts of justice, just as.he is entering the portals of Eternity? I cannot sanction a doctrine so repulsive to Right and Reason. I have no doubt that the Legislature had in view all these considerations in framing this Statute, and that its intention was, that the right of action in such cases, where death ensues, is devolved upon the-administrator, and is barred in one year after his qualification. Collins v. E. T., Va. & Ga. R. R. Co., MS., Knoxville, 1874. When the interpretation of a Statute is doubtful, it is against the policy of the law, and all the traditions of the Courts, to give it such a construction as must necessarily defeat a remedy. Pond v. Trigg, 5 Heis., 537.

I can not concur in the opinion of a majority of the Judges in this case.

DISSENTING OPINION,

DELIVERED BY

MR. JUSTICE TURNEY.

The question in this case arises upon the construction of Section 2291 of the Code, and is, Does the-Statute of Limitations of one year, for the recovery of damages for injury to the person, apply to the present action ?

I concur in the conclusion of Judge Sneed, in an opinion prepared in this case at the last Term of the-Court; and, as an additional reason, in support of its. correctness, hold, that the Act in question creates a new and distinct ground of suit; and, in repealing the-rule of the Common Law, gives a cause for suit and-recovery that neither did nor could have existed in the person injured. The constituents, making up the cause of action on his part, to-wit, pains, mental agony, physicians’ bills, loss of time, and the like, do not enter into those upon which the action for the benefit of the widow and children is based, — which are the loss of the social relations of husband and wife, and parent and child, and the financial, educational, and material aid, in combination with the affectionate advice, and fond protection of the husband and father.

While the husband and father lives, there is no right of action in the wife and children. The right only accrues at his death, and then, only, for the consequences resulting to them from such death. If the husband and father being injured, linger for more than twelve months without bringing suit and then' die, I do not think that the doctrine, that more than- one year, from the injuries to the death having elapsed, will bar the right to sue for the benefit of the widow and children, can be maintained; for the .very strong reason, that no such right existed during that time. Time never runs against that which has no existence. A right of action must first accrue to and vest in a 'party before time can commence to operate against it or destroy it.

If the party injured recover permanently, he may still sue for the injuries to the person. If, however, after the suit is brought, he die from other causes, although within a year after the injuries were received, no right of action passes to the personal representative for the benefit of the family of the deceased. The words of the Statute expressly exclude such interpretation; thereby making inevitable the conclusion, that the right of action, after the death, was intended by the Legislature to give to the wife and children the means of recovering compensation for the losses already indicated, as following to them from the death of the husband and father; to re-imburse them, as far as may be, in money, for their deprivation of that watchful protection, kindly support, and trustful dependence once realized in the husband and father.

For the mutilation, disfigurement, and deformity to the parly injured, the wife and children can maintain no suit — the party injured, while living, may. He may 'exhibit these things in aggravation of the damages. But- his death puts an end to them, as facts, for the consideration of Courts and juries: — for the obvious reason that, in injuries to the person, these things constitute the ground of suit: — while, in suits like the present, the sole inquiry is, Did the death result from the injury? If it did, What is the measure of damages? In the estimate of damages, it can make no difference, whether the injury mangled and disfigured, or left not the slightest mark of violence. The one action is for the wrongs to the person, immediate and direct, and, under proper rules of pleading, is trespass. The other is for wrongs consequential and. r’emote, and should be case.

By the Statute it is not the action which passes to. the representative, but the right of action; nor is it the action which does not abate, but the right of action.

I am unable to see how, under a declaration for injuries to the person, claiming damages for the loss of time, physical and mental suffering, outlay for medical attendance, etc., etc., the representative can proceed fqv the consequential damages resulting to the widow and children from the death of the original plaintiff. If, after his death, the suit remain in Court, under the Provisions of the Statute, new pleadings should, in strictness, be had.

That the Legislature intended to create a new right of action is further made manifest in the Provision, that the recovery shall be for ¿he benefit of the widow and next of kin, free from the claims of creditors.

I am of opinion that this is- not an action for injuries to the person, and that the Statute of Limitations of one year does not apply. 
      
      
         Post, 841.
     