#### The Pittsburg, Cincinnati and St. Louis Railway Company *v.*Minnie Hine, Administratrix of Robert K. Hine, Deceased.

1. Under the “act requiring compensation” for causing death by wrongful act, neglect, or default (S. & C. 1139,1140), which gave a right of action, *provided*such action should be commenced within two years after the death of such deceased person, the proviso is a *condition*qualifying the right of action, and not a mere limitation on the remedy.

*2.*The amendment and repeal of the section containing the proviso, during the existence of the right of action, and the omission of the proviso in the section as amended, did not have the effect of extending the time within which the action should have been brought.

Motion for leave to file petition in error to reverse the judgments of the District Court and Court of Common Pleas of Muskingum county.

The facts appear in the opinion of the court.

*630*Moses M. Granger,*for the motion:

The act (S. & C. 1139-1140) is in derogation of the common law. It created a new right of action. The proviso at the close of section 2 of the act is not a statute of limitations, but a condition upon which the gift of a right to sue-depends. If the condition is not complied, with, the right no longer existe.

The wording of the clause in question indicates the intent of the legislature to make a. condition upon which the right given should depend instead of a statute of limitation. It reads : “ Provided that any such action shall be commenced, within two years after the death of such deceased person.”

A right of action is granted, *provided*it be brought within two years. And the insertion of the proviso, after the-clause empowering the jury to give damages, shows clearly the legislative intent, that if it appear at any stage of the-case that the action had not been brought within two years the suit must fail.

On March 7, 1872 (after Hine’s death), the act on p. 22, laws of 1869, was passed, amending said section 2 and omitting the proviso. The amending act does not provide expressly that it shall apply to pre-existing causes of action; hence the act (S. & S. 1) relieves us from all difficulty as-to which act govei-ns this case.

*John O’Niell,*also for the motion.

*Ball $ Train,*contra :

I. The statute under which this action was brought will be found in S. *&*C. 1139. The first section makes the party who causes the death liable to an action for damages; the second section, among other things, provides that the-action shall be commenced within two years after the death.

Hine was killed September 24,1870. March 7,1872, and while said cause of action subsisted, the second section of said act was amended; and in the act as amended no time is specified in which the action must be commenced.

*631The construction of said section 2 claimed hy counsel for the motion is untenable.

1. If the legislature had intended only to give a conditional right of action, they would have annexed the condition to the right, by incorporating the condition into the clause or section creating the liability. This they did not do.

2. It is a general rule of construction of statutes, civil and criminal, that if a proviso, exception, or limitation is put in a separate clause or section from the clause or section creating the right or describing the offense, then the exception, proviso, or limitation is held not to be of the substance of the right or offense, but matter of defense only, and the pleader need not negative the exception or proviso, but the defendant must plead it as matter of defense. *Smith*v. *Moore,*1 Greenl. 4; *Vavasour*v. *Ormond,*4 Dow. & Ry. 599 ; 6 Barn. & Cress. 432 ; 13 Com. L. 225; *Spiers*v. *Parker,*1 Term R. 141; *Gill*v. *Scrivens,*7 Term R. 27 ; *State*v. *Barker,*18 Vt. 195; 1 Chitty Crim. Law, 284; Stephens Pl. 350-356; *Williams*v. *Hingham Turnpike,*4 Pick. 345; Gould on Pl. 178 *et seq; Rex*v. *Pemberton,*2 Burr. 1037; *Rex*v. *Jarvis,*1 East, 647; 1 Starkie Crim. Pl. (2 ed.), 176 ; *Steel*v. *Smith,*1 Barn. & Ald. 94; *Hirn*v. *The State,*1 Ohio St. 391; *Becker*v. *The State,*8 Ohio St. 391.

II. The statute in force at the time the suit is brought, and not the act in force when the cause of action accrued, governs this case. *Patterson*v. *Gaines,*6 How. 551; *Bank of Alabama v. Dalton,*9 How. 522; *Bockel*v. *Crosby,*2 Penn. 432; *Bradford*v. *Shine’s Adm’rs.,*7 American R. 239; *Ruggles*v. *Kuler,*3 John. 261; *Butler*v. *Palmer,*1 Hill, 324; *Norris*v. *Slaughter,*1 Greene (Iowa), 338; 1 McLean, 156.

It follows, then, that the act of March 7th, 1872, having repealed section 2 of the original act, and having substituted nothing in its place, the case must be governed by the general act of limitation (S. & C. 949; Code, sec. 15), which is four years, and the action is commenced in time.

*632III. But it is claimed that the defendant’s right to rely upon the two years’ limitation is saved by the act of February 19th, 1866 (S. & S. 1). The answer to this claim is obvious from a perusal of the act.

It will be seen that the act only affects pending actions, prosecutions, and proceedings, and causes of “ *such*action,” etc. The words “ such action ” clearly relate to and are limited to causes of pending actions, etc. This is the fair construction of the language of the act; and this view is rendered certain when we look to the law as it stood before the amendment. (S. & O. 60.) The word “ such” is put into the amending act, and the words “ not in suit that occurred prior to any such repeal,” in the original act, are not found in the amended act, and we submit that the legislature had an object in view when they interposed the word “such” and omitted the words “not in suit,” etc. But •even if “ causes of such action ” does not refer to “ pending actions,” the limitation is not affected by the act in question, because statutes of limitation do not affect the causes of action, but simply the remedy. Angelí on Lim., secs. 22 and 23, and cases there cited.

IV. If the act of February 19, 1866, does apply to statute of limitations, it can not affect the case at bar, because the defense of the *statute of limitations*must be pleaded, or it is waived. *Lockwood*v. *Wildman,*13 Ohio, 430; *Haymaker*v. *Haymaker,*4 Ohio St. *272; Sturgis*v. *Burton, 8*Ohio St. 215 ; *McKinney*v. *McKinney,*8 Ohio St. 423.

Gilmore, J.

It appears from the testimony set out in the bill of exceptions, that Robert E. Hine was killed in a collision on the road of the defendant below (plaintiff in error), on the 24th of September, 1870.

The action was commenced in the Common Pleas, by the administratrix, on the 23d of January, 1873, being more than two years after the death of Hine.

The object of the action was to recover damages, on the ground that the death occurred through the wrongful act, neglect, and default of the defendant.

*633On the trial the defendant requested the court to instruct the jury in substance as follows: “If you find, from the testimony, that the action was not commenced within two years after the death of Hine, your verdict- must be for the •defendant.”

Which instruction the court refused to give as requested. On error, the District Court affirmed the Common Pleas. In this proceeding, the reversal of the courts below is •sought, on the ground that the Common Pleas erred in refusing to give the instruction requested.

The legislation bearing upon the question is as follows :

1. The act of March 25,1851 (S. *&*C. 1139). The first -section of this act creates and gives a right of action for the recovery of damages in cases of this kind. The second section provided substantially: That the action should be brought in the name of the personal representative of the deceased, for the exclusive benefit of the widow and next of kin, and that the amount recoverable should not exceed five thousand doliars, and this section concludes with the following proviso : “ Provided, that every such action shall be commenced within two years after the death of such deceased person.”

2. The act of March 7, 1872 (69 Ohio L. 22), which ■amends section 2 of the above-named act, by allowing a recovery in any sum not exceeding ten thousand dollars, and •omitting the proviso above quoted, and the original section ■2 is repealed, without a saving clause as to existing rights.

3. Section 2 of the act of April 8, 1856, “ concerning the enacting and repealing of statutes,” as amended February 19, 1866 (S. & S. 1), in effect provides: That whenever a -statute is repealed or amended, such repeal or amendment •shall in no manner affect causes of action existing at the time of such amendment or repeal, unless otherwise expressly provided for in the amending or repealing act.

The rights of the parties are to be ascertained by a con•struction of these statutes, considered in connection with the ■nature of the right of action, or chose in action, in controversy in this case.

*634The right of action given by the statute of 1851 is in the nature of property in action, a thing which the personal representative of the deceased was entitled to reduce to possession, for the benefit of the family of the deceased, by an action at law. The right was not known to the common law where damages for a tort to the person were recoverable only during the life of the party injured; and the death of the plaintiff, pending the suit, abated it. Nor could the wife or husband, parent or child, recover any pecuniary compensation for the injury sustained by the death of the relative. Hence, the right of action, in such cases, could only be conferred by statute. In Ohio, no such right was given by any statute previous to that of 1851. In creating or giving the right by this act, it was within the power of the legislature to impose upon it such restrictions as were thought fit; and if restrictions were imposed, they must be referred to the newly created right itself, if the restrictive language used will warrant it; for the act being in derogation of the common law, any restrictive language used in it must be construed against the right created by it. It would be different if the act was merely remedial as to existing rights; such statutes are to be liberally construed.

In this view, we regard the proviso contained in section two of the act of 1851, above quoted, as a restriction qualifying the right of action itself, and not merely a time limitation upon the remedy. The right of action in this case came into existence while the section above named was in force, and the right was, therefore, subject to the restrictions contained in the proviso. The amendment and repeal of the original section, while the right was existing in 1872, and the omitting of the proviso in the section as amended, did not have the effect of enlarging or extending the right. The amendment, like the original act, was prospective only in its operation, and had no effect whatever upon the existing right in this case. The effect of the repeal of the original section two, without a saving clause, was to bring into operation, as to the then existing right of *635action of the plaintiff below, the provisions of the act of 1866, which kept it unaffected by the repeal of the section named; and the action might still have been well brought within two years after the death of the deceased. The plaintiff below having failed to bring her action within the period named, the right had perished before the action was brought.

The principle involved here is analogous to that in the case of *Bonte et al.*v. *Taylor et al.,*24 Ohio St. 628.

There being no cause of action in existence at the time the action was commenced, there was nothing conclusively waived by the failure of the defendant below to demur tO' the petition, or to make the objection by way of answer. Code of Civil Pro., see. 89.

The defendant below had a right to insist, in the trial, on a finding of fact by the jury, that would be fatal to the claim of the plaintiff below. The court, therefore, erred in refusing to give to the jury the instructions requested by the defendant below.

Por this error, the judgments of the courts below are respectively reversed, and the cause is remanded to the Common Pleas for such further proceedings as may be authorized by law.

*Motion granted and judgments reversed.*

McIlvaine, C. J., Welch, White, and Rex, JJ., concurred.