Cugell v. Sani-Wash Laundry Co.

The declaration charges negligent injuries to Joseph Musial on November 24, 1915, resulting in his death on the same day; and that he left surviving him a widow, Barbara, a son, two years old, since deceased, and a daughter Adella, about five months old, who became of age June 22, 1936.

Plaintiff was appointed administrator of the estate of Joseph Musial April 21, 1936, and commenced this action July 21, 1936, particularly for the benefit of Adella, counting on both the survival and the death acts.

On motion, the action was dismissed on the ground that the statute of limitations had run against it.

The statutes of limitations involved are:

"Actions to recover damages for injuries to person or property shall be brought within three years from the time said actions accrue, and not afterwards." 3 Comp. Laws 1929, § 13976.

"If any person entitled to bring any of the actions mentioned in the chapter shall, at the time when the cause of action accrues, be within the age of twenty-one years, insane, or imprisoned in the State prison, such person may bring the action within the times in this chapter respectively limited, after the disability shall be removed." 3 Comp. Laws 1929, § 13978.

Plaintiff's contention is that, because Adella Musial would have had an interest in the recovery as infant daughter, the latter statute applies to the instant case.

It is the rule that statutes of limitations apply to infants as well as to adults, unless exceptions are made in their favor.

The survival statute, 3 Comp. Laws 1929, § 14040, applies when death from the injuries is not instantaneous. The cause of action accrues to the deceased during his lifetime. In case of his death before judgment, his executor or administrator may prosecute the suit. 3 Comp. Laws 1929, § 14042. Such cause of action, therefore, would vest in the representatives of the deceased on his death, Adella would not be a "person entitled to bring" the action, and section 13978 is not applicable.

The death act, 3 Comp. Laws 1929, §§ 14061, 14062, created a new right of action not known to the common law. It applies only when death is instantaneous. The action "shall be brought by, and in the names of, the personal representatives of such deceased person." Plainly, this vests the right of action in the personal representatives of the deceased, and Adella Musial is not a "person entitled to bring" such action.

Section 13978 obviously refers to causes of actions accruing directly to an infant. A minor has no severable and personal right of action for injuries to his parent. The section tolling the statute of limitations for the benefit of infants is not applicable here. Bledsoe v. Stokes, 1 Baxt. (60 Tenn.) 312; VanVactor v. Railroad Co., 112 Ky. 445 (66 S.W. 4).

Affirmed, with costs.

NORTH, WIEST, BUTZEL, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred.