Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-07-19
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGEsTED BY W. B. MARTIN.
Exclusively for virGinian-Pilot)
HOovERs ADMX ". c. & o. r. CO.
Supreme Court of Appeals. West
Virginia,
April 8. 1899.


April 8, 1899.
UNDER THE CODE OF WEST vIR-
GINA AN ACTION MAY BE MAIN
TANNED WITHIN TWO YEARS
AFTER THE DEATH OF THE
PERSON WHOSE INJURY Is THE
CAUSE OF SAID ACTION. AL
THOUGH SAID DEATH DOES NOT
OCCUR WITHIN MORE THAN a
YEAR FROM THE TIME OF THE
INJURY.
IA similar law exists in Virginia,
Code section 2S02.]
This was an action for damages for
the negligent killing of plaintiffs in
testate by the defendant company. The
deceased was injured on November 30.
1891. and died on October 5th. 1893. The
defendant contended that the suit
could not be brought under section 5.
chapter I03 of the Code of West Viz
ginia, because the deceased had no
cause of action at the time of his deaf
the same being barred by the statute
or limitations of one year, and there
fore his administrators could not sue:
that no action could be brought under
that section unless death ensue within
one year after the injury, or sui; be
pending at the time of death. There
was a Judgment for defendant and
plaintiff appealed.
The court says:
The first clause of the section.
Whenever the death OF d person shall
be caused by wrongful act. neglect or
default. and the act, neglect or default
is such as would Of death had not en-
sued) have entitled the party injured
to maintain an action to recover dam
ages in respect thereof plainly re-
lates to the character of the injury,
without regard to the question of time
of suit or death. In other words. il the
character of injury is such that the in
jury party could have at any time
maintained n suit IN relation thereto,
his administrator could sue after his
death. His cause of action is the neg
lgent injury, but the administrator can
have no cause of action until such neg
lieent injury result in death. II such
were not the case, why not provide
merely that the deccdents cause of ac-
ton survive to his personal represent
tative. without making the death,
coupled with the negligence that occa-
stoned IL, Il new cause of action? And
why not give the damages recovered to
his estate. instead of eXempting them
from his debts and liabilities? The
second clause of the section. Then and
In every such case. the person who. or
the corporation which, would have
beeen liable if death had not ensued
shall be liable TO an action for dam
ages, Notwithstanding the death of the
person injured" does not refer to liza
bility after time OF the death of the
party. but is descriptive of the person
made subject TO such liability. "Who
would have been liable IL death had not
ensued." means liable at any time prior
to the time of death. and not just at
that period ~ the wording of the
section the action is given only on the
f1,nt tlo Il
person has not himself received sat
isfaction for the injury. thus prevent
ing the recovery of two satisfactions
Tor one wrong; for 1t is given in cases
In which the party injured might have
sued. but implicitly did not, and against
n marty who would have been made
liable If death had not ensued; but who
1mpledly was not made liable
Hence the true reason why The admin
istrator cannot maintain this action
where the deceased was guilty of con-
tributory negligence, or received sntis-
Iaction or executed a release during his
ilIetlne, is not because of q bar oc-
casioned by the conduct or act of tho
plaintiff, but because the statute plainly
does not give an action in such cases
but only where the deceased might have
maintained an action. but failed to do
so. against a defendant liable for dam
ages. but who has not satisfied the
same.
The statute makes no reference
either implicitly or otherwise, to the
bar or the statute of limitations nrior
to the death OF the injured person. His
condition. mental or physical, or OBJ
structions by the wrongdoer. might
prevent his bringing suit within the
year, and yet the fact that he survived
ior more than year is claimed to bar
the suit of the plaintiff. There is no
such provision in the statute While
me real cause of action is the nerli-
gent injury, 1t is not consummated nm
III 1t result in death, and then the ac-
lion accrues to the administrator. and
not until then. To hold otherwise is To
make TWO statutes OF limitation. both
or which would be bars affecting the
cause Oh action. one beginning to run
ut the inception of the cause
OF action. and the other begin
ning TO run at its contamination. so
that II the cause of action was not con-
summated within year il would ho
barred by the first and If consummatad
within the year it would have double
time to run under the second. In the
absence OF express provision to the
contrary, this would be an unreaso soma
BILE construction of the law.
1t is possible for learned and able
counsel to give the statute a different
construction, but the court adopts what
appears to be the more reasonable
view. and this is that an action lies
Notwithstanding the death of the injur
eu person did not occur until more than
year after the negligence which caus-
cd the injury occurred: for which raa
son me judgment OF the Circuit Court
sustaining the demurrer to the plain
I'LL declaration, is reversed and an
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