Morrison v. Baltimore & O. R. Co.

Mr. Justice Robb

delivered the opinion of the Court:

The demurrer of the defendant admits the truth of the averments of the declaration, and plaintiff seeks to invoke the well-recognized rule that when a defendant who relies upon an ordinary statute of limitations has previously been guilty of deception or violation of duty toward the plaintiff, causing him to subject his claim to the statutory bar, such a defendant will be held to have wrongfully obtained an advantage which, in good conscience, he is estopped to hold or plead. Bailey v. Glover, 21 Wall. 342 , 22 L. ed. 636; Holman v. Omaha & C. B. R. & Bridge Co. 117 Iowa, 268 , 62 L.R.A. 395 , 94 Am. St. Rep. 293 , 90 N. W. 833 ; Chesapeake & N. R. Co. v. Speakman, 114 Ky. 628 , 63 L.R.A. 193 , 71 S. W. 633 . The defendant, on the other hand, insists that under said act of 1906 there is no room for the application of the foregoing rule; that this statute confers a right to which is attached a condition that it be enforced within the stated period.

The act in question creates a liability where none existed, and takes away defenses formerly available. Coupled with this enlargement of the liability of common carriers is the limitation that no action shall be maintained under the act “unless commenced within one year from the time the cause of action accrued.” The ordinary statute of limitations confers upon a defendant the privilege of interposing a definite limitation of time as a bar to the enforcement of a liability existing independently of the statute defining the limitation. Such statutes; *395 therefore, are merely limitations of the remedy. Statutes like the present are more. They create a right of action conditioned upon its enforcement within the prescribed period. The legislature, having the power to create the right, may affix the conditions under which it is to be enforced, and a compliance with those conditions is essential. “The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. * * * Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right.” The Harrisburg, 119 U. S. 214 , 30 L. ed. 362, 1 Sup. Ct. Rep. 140. See also Walsh v. Mayer, 111 U. S. 37 , 28 L. ed. 340, 4 Sup. Ct. Rep. 260. It is therefore necessary for one seeking to enforce a right under such a statute to state a case within it, and time is of the essence of the right. Had plaintiff’s suit been filed within the statutory period, it would have been no more necessary to have referred to the act than to any other statute of the forum. Mis souri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 575 , 57 L. ed. —, 33 Sup. Ct. Rep. 135; Morrisey v. Hughes, 65 Vt. 553 , 21 Atl. 205 . An averment of facts bringing the case within the statute would have been sufficient. As a reading of the original declaration discloses that the suit was not filed within the statutory period, it must be presumed that the action was based upon the common law. In the amended declaration filed November 25, 1911, plaintiff relied upon the employers’ liability acts of 1906 and 1908, but he did not allege any reason for his failure to bring his suit within the statutory period. This amendment was filed more than four years after the accident. It was more than five years after the accident that any averment was inserted in the declaration accounting for the delay, and then several years had elapsed since the alleged deceptive representations of the defendant. Under these circumstances, we do not think plaintiff is in a position to raise the question of the effect of a seasonable excuse for delay, based upon bad faith of the defend *396 ant. IJnlike tbe rale applicable to a defense based upon an ordinary statute of limitation, which requires the defendant to plead the statute, that the plaintiff may have an opportunity of replying and pleading any matter which would prevent the running of the statute, the rule applicable to statutes creating a conditional right of action permits the defendant to interpose a demurrer where, upon an inspection of the pleadings, it is apparent that a case within the statute has not been stated. Lambert v. Ensign Mfg. Co. 42 W. Ya. 813, 26 S. E. 431 ; Bretthauer v. Jacobson, 79 N. J. L. 223, 75 Atl. 560 ; Poff v. New England Teleph. & Teleg. Co. 72 N. H. 164, 55 Atl. 891 ; Trull v. Seaboard Air Line B. Co. 151 N. C. 545 , 66 S. E. 586 ; Dowell v. Cox, 108 Va. 460 , 62 S. E. 272 ; Hanna v. Jeffersonville R. Co. 32 Ind. 113 ; Hill v. Rensselaer County, 119 N. Y. 344 , 23 N. E. 921 ; Kavanagh v. Folsom, 181 Fed. 401 ; Callan v. Bodine, 81 N. J. L. 240, 79 Atl. 1057 . The original declaration herein invoked the rule of the common law as a ground of action. The attempt of the plaintiff, more than one year after the alleged bad faith of the defendant, to invoke a different rule, namely, the rule prescribed by said act of 1906, must be held to amount to the commencement of a new action. The change was one of substance, and not merely of form. Union P. R. Co. v. Wyler, 158 U. S. 285 , 39 L. ed. 983, 15 Sup. Ct. Rep. 877. It is unnecessary, therefore, to determine the effect of an excuse, seasonably pleaded, for failure to bring the suit within the statutory period.

The contention that the provision in the employers’ liability act of 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322), extending the time within which actions may be brought to two years, is retroactive, has been abandoned, as the Supreme Court of the United States, in Winfree v. Northern P. R. Co. 227 U. S. 296 , 57 L. ed. —, 33 Sup. Ct. Rep. 273, decided to the contrary.

The judgment must be affirmed, with costs. Affirmed.