Gillette v. Delaware, Lackwanna & Western Railroad

The opinion of the court was delivered by Parker, J.

The suit was for jjersonal injuries and was based on the Federal Employers’ Liability act of 1908. 35 Stat. at L., p. 65. At the trial, after amendment of the answer so as to raise the point, plaintiff was nonsuited on the ground that the suit had not been commenced within the time provided by section 6 of the"act, viz., within two years from the day the cause of action accrued.

Plaintiff was injured on October 6th, 1910. He was then under age and reached his majority July 21st, 1915. The suit was begun on July 11th, 1916, within a year after his majority, but nearly six years after the accident. The question for decision is whether the non-age of plaintiff suspended the operation of section 6 of the federal act.

Our conclusion is that it did not. As in the case of our Death act, the federal act in creating rights of action at the same time limits their exercise to the period prescribed. It is more than a mere statute of limitation; it is a condition of the bringing of the action that it he begun within two *221 years from the day the cause of action accrued. Hence the inquiry is, When did such a cause of action accrue — when could the plaintiff have caused a summons to issue, based (hereon \

In the case of fatal injury and suit by a representative, it has been held that the cause of action did not accrue until the representative was appointed. American Railroad Co. v. Coronas, 230 Fed. Rep. 545. But the case of an infant is very different. He may bring bis suit at once, notwithstanding his minority. It is true that the suit must lie prosecuted by guardian or next friend (Practice act of 1903, § 18), but it is not necessary that a next friend be appointed before suit begins; on the contrary, process may be sued out before the next friend is appointed. 2 A rcd. Prac. 940, 6th ed. This, said our Supreme Court in 1810, “is the common practice.” Groff v. Groff, 3 N. J. L. (Pen.) *656. Consequently, there was nothing to prevent the plaintiff’s taking out a summons the day after he was injured. IIis cause of action had accrued, for lie was in a position to assert it in a court of law.

Our statute of limitations contains a provision that infants entitled to any of the actions previously specified in that act shall have the respective periods of limitation after majority in which to bring suit. Comp. Stat., p. 3164, § 4. This, however. is on its face inapplicable to the Federal act, which, as we have already said, lays down the conditions under which suits may be brought under it.

As plaintiff had failed to bring his action within the time limited by the statute, the nonsuit was justified, and the judgment will be affirmed.

For affirmance. — The Chancellor, Chief Justice. Garrison, Swayze, Trenchard. Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, JJ. 13.

For rere, rsa 1 — FT one.