Birmingham v. Chesapeake & Ohio Railway Co. , 98 Va. 548 ( 1900 )

Harrison, J.,

delivered the opinion of the court.

This is an action of trespass on the case in assumpsit, brought to recover damages for personal injuries alleged to have been sustained by the lolaintiff through the negligence of the defendant.

It appears that suit was not brought within one year from the time the cause of action arose, and that the defendant, in addition to the general issue, filed its plea of the statute of limitations, which was sustained, and judgment given accordingly.

It is contended that the one year statute of limitations does not apply; that this is an action ex contractu, brought to recover damages for the failure of the defendant to safely transport the plaintiff over its railroád from Buchanan, Ya., to Harvey, W. Va., and that it is governed by section 2920 of the Oode, which, prescribes a limitation of three years upon all contracts, except those specifically mentioned therein, and as to which some other-limitation is provided by said section.

This position is not tenable. The limitation is not determined by the form of action, 'but by its object. If the thing complained of is an injury to the person, the limitation in assumpsit is the same as if the action were in form ex delicto. “Whenever the injury is merely personal, whether resulting from breach of contract or from tort, the maxim, actio personalis moritur cum persona, prevails.” Grubb v. Sult, 32 Gratt. 203.

The object of the suit at bar being to recover damage for personal injuries alleged to have -been sustained by the plaintiff, the limitation in tort actions is applicable.

It is further contended that, even if this be regarded and treated as a tort action, it would not be barred in one year; that under the law, as it is now, the limitation upon such an action is five years. Prior to January 29, 1894, this action, being to recover damages for personal injuries, would have been barred, unless the suit had been brought within one year from the time the injury complained of was inflicted. Anderson v. Hygeia Hotel Co., 92 Va. 687.

By an act approved January 29, 1894, the Legislature amended and re-enacted section 2906 of the Oode so as to make it read as follows:

“When Right of Action Wot to Determine, nor Action when Brought to Abate.—The right of action under sections 2902 and 2903 shall not determine, nor the action when brought, abate by the death of the defendant, or the dissolution of the corporation, when a corporation is the defendant; and where an action is brought by a party injured, for damages caused by the wrongful act, neglect, or default of any person or corporation, and the party injured dies pending the action, the action shall not abate by reason of his death, but his death being suggested, it may be revived in the name of his personal representative.” (Acts 1893-’4, page 83.)

The question presented involves a construction of the statute quoted, it being contended that this amendment makes all actions for personal injuries reviva'b'le, and, therefore, under the provisions of section 2927, the period of limitations to such actions is extended to five years.

The amendment in question is somewhat obscure. The language, however, does not warrant the conclusion that the intention was to make such 'a radical change in the law as that suggested by the present contention. The object intended to be accomplished was, we think, to give the right of revival in cases where the plaintiff died pending the action, without regard to the cause of death. Before the amendment, an action to recover damages for personal injuries could not be revived except in those cases where the plaintiff died as a result of the injuries complained of; whereas, under the law as amended, if the plaintiff die, pending the action, no matter from what cause, the action may be revived. The amendment was not intended to change or affect the period of limitations to actions for personal injuries, and such actions must, as heretofore, be brought within one year next after the right to bring the same shall have accrued.

It is further suggested that'special damages being laid in the declaration is sufficient to cause the action to survive. The special damage relied on is one hundred dollars alleged to have been paid out on account of the injuries sustained by the plaintiff. Such a claim for indirect and incidental damages to the plaintiff’s estate, arising from an injury purely personal in its nature, ■does not cause the action, brought to recover for such injuries, to survive. Mumpower v. City of Bristol, 94 Va. 737.

For these^ reasons, the judgment of the Circuit Court must be affirmed.

Affirmed.