widow and children of the deceased may, without the consent of the representative, use his name in bringing and prosecuting the suit." There is no statute of limitations in that State made expressly applicable to this class of cases, but the statute prescribing the limitation of personal actions provides that actions for personal injuries shall be commenced within one year after the cause of action accrues. It has been held by a divided court, in a case where an administrator brought an action for damages for injuries to his intestate resulting in death, that the cause of action accrues at the date of the injury, and that the Statute of Limitations begins to run from the moment of the injury, and is not suspended by the lapse of time between the death and the qualification of the personal representative. The argument of the majority of the court is as follows: "The statute is equally applicable to cases where the injured party lives a time, and to cases where death is instantaneous. Where the injured party lives a time after the injury, he has a right of action without the statute. If an action be brought by the party himself, and he then dies of the injury, before judgment, the effect of the statute is to prevent an abatement, and to allow the cause to proceed notwithstanding the death; but not on account of the death. The cause of action was the injury. And in such cases, the action, after the death, is prosecuted for the same cause for which it was brought, and is the same action. In cases where no action is brought by the injured party himself, the statute allows the action to be brought by the representative. This could not have been done at the common law, and it is, therefore, in this sense, a new and statutory action. But it is brought for the same cause as if the injured party had himself brought the action." "10 A like view seems to obtain in Ohio.11 § 7014. Accrual of Action under Missouri Statute.-The statute in Missouri provides that all damages accruing under the act "may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased," and every action instituted by virtue of the act "shall be commenced within one year after the cause of such action shall accrue."12 Under these provisions it has been "Shannon's Tenn. Code § 4026. § 4469. 1896, Tenn. Code 1896, Fowlkes v. Nashville &c. R. Co., 9 Heisk. (Tenn.) 829. See also, Whaley v. Catlett, 103 Tenn. 347; s. c. 53 S. W. Rep. 131. 10 Fowlkes v. Nashville &c. R. Co., 9 Heisk. (Tenn.) 829. See Needham v. Grand Trunk R. Co., 38 Vt. 294. 11 Alston v. Cleveland &c. R. Co., 1 Ohio C. D. 353. 12 Mo. Rev. Stat. 1899, § 2868. held that, where the deceased had minor children, the right of his widow to sue would be barred six months after his death.13 And if she fails to sue within that time, the minor children have not twelve months thereafter within which to sue. The cause of action, it was held, accrued upon the death of the deceased, and the statute commenced running then. The fact that the right to the damages, and consequent right to sue for them, at different times is vested in different individuals, can make no difference as to the time the cause of action accrued. The fact that the widow begins a suit which she voluntarily dismisses, and after six months the children begin another, does not show a failure "to sue" within the meaning of the statute. 15 14 $7015. When Action Deemed Commenced.-Within the meaning of the proviso of an act giving an action for damages resulting from death caused by wrongful act, limiting such actions to those commenced within the statutory period after the death, an action is commenced when process, duly attested and issued, is put in the hands of the sheriff to be served.16 $7016. Extension of Statutes Limiting Time for Commencement of Action-Infancy.-Statutes limiting the time within which such actions must be brought are not regarded by courts in the light of ordinary statutes of limitations. As said by Mr. Justice Waite in passing upon this class of statutes: "The statutes create a new legal liability with a right to a suit for its enforcement providing the suit is brought within twelve months and not otherwise; 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."17 So, the fact that a suit removed "Coover v. Moore, 31 Mo. 574; Barker v. Hannibal &c. R. Co., 91 Mo. 86; s. c. 14 S. W. Rep. 280 (lack of minor children must be averred). In an action for wrongful death under Mo. Rev. St. 1899, § 2865, designating actions that survive, it was alleged by the widow of deceased that he left no minor child or children surviving him. The only evidence to support the allegation was her testimony that she had been married before she married the husband for whose death the action was brought, and that she had living a minor child, but to which of her husbands the child was to be credited was not distinctly stated. In referring to her last husband, she said, "He provided well for me and my child." It was held insufficient to show that the husband for whose death plaintiff sued left no minor child: Case v. Cord well Zinc &c. Co., 103 Mo. App. 477; s. c. 78 S. W. Rep. 62. 14 Kennedy v. Burrier, 36 Mo. 128. See also, Proctor v. Hannibal &c. R. Co., 64 Mo. 112. 15 McNamara v. Slavens, 76 Mo. 329. 16 County v. Pacific Coast Borax Co., 68 N. J. L. 273; s. c. 53 Atl. Rep. 386. "The Harrisburg, 119 U. S. 199; s. c. 30 L. ed. 358; 7 Sup. Ct. Rep. 140. to the Federal Court has been dismissed in that court without prejudice to a new action, has been held not to stay the operation of a statute fixing the time for the commencement of the suit.18 Nor will the fact of the infancy of the beneficiary prolong the time for the suit where the action is to be brought by the personal representative of the deceased.19 But where the action may be brought in certain cases by the infant, there is authority to the effect that the action may be brought by the minor within the statutory time after attaining his majority.20 § 7017. Amendment of Pleadings After Statute has Run.Whether an amendment can be made to a declaration so as to conform it to the requirements of the statute, after the period has elapsed within which actions under the statute may be brought, depends upon the nature of the amendment. If the statute requires that the action shall be brought within a certain time by certain parties, and an action be commenced within the time, but in the name of the wrong parties, the declaration cannot be amended, after the time within which the action must be brought, by inserting the names of the proper parties who by law could maintain the suit.21 But where a statute provides that the declaration shall state who are the beneficiaries for whom the action is brought, if the action be brought within the time by the proper party, the names of those for whose benefit the action is instituted may be inserted by amendment, although the time within which the suit must be brought has expired at the time of making the amendment.22 The test, under statutes allowing amendments, as to whether amendments may be made to a declaration after the time limited by statute within which actions can be brought seems to be: 1. Does the original declaration state a cause of action under the statute? 2. Does the amended declaration state a different cause of action? If the first question is answered affirmatively, and the second negatively, the amended declaration is not barred by the statute of limitations.23 18 Rodman v. Missouri Pac. R. Co., 65 Kan. 645; s. c. 70 Pac. Rep. 642; 59 L. R. A. 704. 19 Elliott v. Brazil &c. Coal Co., 25 Ind. App. 592; s. c. 58 N. E. Rep. 736; Van Vactor v. Louisville &c. R. Co., 112 Ky. 445; s. c. 66 S. W. Rep. 4; 23 Ky. L. Rep. 1743; Whaley v. Catlett, 103 Tenn. 347; s. c. 53 S. W. Rep. 131. 20 Rutter v. Missouri &c. R. Co., 81 Mo. 169. 21 Selma &c. R. Co. v. Lacey, 49 Ga. 106. See also, Buel w. St. Louis Transfer Co., 45 Mo. 562; Crockett v. St. Louis Transfer Co., 52 Mo. 457; Lottman v. Barnett, 62 Mo. 159; Fitzhenry V. Consolidated Traction Co., 63 N. J. L. 142; s. c. 42 Atl. Rep. 416. 22 Huntington &c. R. Co. v. Decker, 84 Pa. St. 419. 23 See Jeffersonville &c. R. Co. v. Hendricks, 41 Ind. 48. See also, Kansas &c. R. Co. v. Salmon, 14 Kan. 512; S. c. 11 Kan. 83; St. § 7020. Death of Beneficiary.-Actions for wrongful death come within the rule actio personalis moritur cum personalis, and will abate on the death of the statutory beneficiary, unless provision is made by law for the survival of the action to other heirs,2 survivors, or personal representatives of the deceased beneficiary. Under the Georgia statute, if a widow brings suit for the homicide of her Luke's Hospital v. Foster, 86 Ill. App. 282; Wingert v. Carpenter, 101 Mich. 395; s. c. 59 N. W. Rep. 662. 'See Saunders v. Louisville &c. R. Co., 111 Fed. Rep. 708; s. c. 40 C. C. A. 565; Chivers v. Rogers, 50 La. An. 57; s. c. 23 South. Rep. 100; Railway Co. v. Lilly, 90 Tenn. 563; 8. c. 18 S. W. Rep. 243; 49 Am. & Eng. R. Cas. 495. An action commenced by an administrator to recover for the benefit of the widow, for the negligent killing of the intestate, who left no children, abates upon the widow's death, although the intestate left a father for whose benefit the cause of action would have accrued if the widow's death had preceded that of the intestate, under Tenn. Code, § 3130, providing that a right of action for death caused by wrongful act or omission shall pass to the widow, or to the personal representative for the benefit of the widow or next of kin: Railroad v. Bean, 94 Tenn. 388; s. c 29 S. W. Rep. 370. Meekin v. Brooklyn Heights R. Co., 51 App. Div. (N. Y.) 1; s. c. 64 N. Y. Supp. 291; s. c. aff'd, 164 N. Y. 145; 58 N. E. Rep. 50; 31 Civ. Proc. Rep. (N. Y.) 239; 51 L. R. A. 235. 'Under N. Y. Code Civ. Proc., $1903, providing that damages recovered in an action for causing death by negligence are for the benefit of decedent's husband or wife and next of kin, the right of action for an unmarried son's death belongs to the father, where the mother is dead and there are no heirs or next of kin: Doyle v. New York &c. R. Co., 66 App. Div. (N. Y.) 398; s. c. 72 N. Y. Supp. 936. An action commenced by a husband and wife jointly for the negligent killing of their minor son survives to the husband upon the wife's death pending the action, under Mo. Rev. Stat. 1889, § 4425, providing that such an action may be maintained by a father and mother jointly, and, if either of them be dead, by the survivor: Senn V. Southern R. Co., 124 Mo. 621; s. c. 28 S. W. Rep. 66. The right of the mother of an unmarried minor whose father is dead, to recover damages for the death of the child under a statute giving such a right to the father and mother, or the survivor of them, is not changed by the fact that she has married another man who has assumed the obligations of a natural father to his stepchild: Hennessy v. Bavarian Brew. Co., 145 Mo. 104; s. c. 46 S. W. Rep. 966; 41 L. R. A. 389. Thomas v. Maysville Gas Co., 112 Ky. 569; s. c. 66 S. W. Rep. 398; 23 Ky. L. Rep. 1879; Haggerty v. Pittson, 19 Pa. Super. Ct. 151. Ga. Code 1895, § 3828. The homicide of a husband or parent is made a special cause of action, and the action is limited to such cases: Georgia R. Co. v. Wynn, 42 Ga. 331; Chick v. South-Western R. Co., 57 Ga. 357; Miller v. South-Western R. Co., 55 Ga. 143. 8 7 husband, and she dies pending the action, a suit may be brought by the surviving children; but her marriage will not divest her right to bring suit, nor will it change the measure of damages. But the right of action conferred upon a mother for the homicide of a son upon whom she is dependent has been held not to survive to her administrator, where no suit has been instituted by her at the time of her death. In Wisconsin, where an action was brought by an administrator for the death of a wife and for the benefit of the husband, it was held that, on the death of the husband, the action did not survive for the benefit of a child, but abated on account of the death of the real party in interest." Where a husband and wife were both injured by the same accident, and both died, but the husband a little before the wife, it was held that the right to damages vested absolutely in the wife, and on her death went to her heirs, to the exclusion of the heirs of the husband.10 In an English case, in an action by the plaintiff, a child seven years of age, by his next friend, for injuries done to him by the horse of the defendant, and where the jury found a verdict of £150, and nine days after the trial the child died, and judgment was afterward signed by the next friend, and an application was subsequently made to stay proceedings, or for a new trial, on the ground of the death of the plaintiff since the trial, it was held that, although the damages were presumably given on the supposition that the child would continue to live, the case was not one in which the court would grant a new trial.11 § 7021. Further of the Effect of the Death of the Beneficiary.Under the Pennsylvania act,12 providing that no action to recover damages for personal injuries shall abate by the death of plaintiff, but his personal representatives may be substituted, and the action prosecuted to judgment, recovery for the death of the plaintiff cannot be had in such action on the substitution of his personal representatives." Under another section of the same statute,11 providing that when death is occasioned by negligence, and no suit for damages is brought by the person injured, his widow may sue for damages for his death, no action can be maintained by the widow for the husband's death, where the 13 David v. South-Western R. Co., Colt. 427; s. c. L. R. 1 Exch. 241; 41 Ga. 223. 12 Jur. (N. S.) 395; 35 L. J. (Exch.) Georgia R. Co. v. Garr, 57 Ga. 148; 14 Week. Rep. 659; 14 L. T. (N. S.) 368. 277. 8 Frazier v. Georgia R. &c. Co., 101 Ga. 77; s. c. 28 S. E. Rep. 662. • Woodward v. Chicago &c. R. Co., 23 Wis. 400. 10 Waldo v. Goodsell, 33 Conn. 432. 11 Kramer v. Waymark, 4 Hurl, & 12 Pa. Act Apr. 15, 1851 (P. L. 669), § 18. 13 Edwards v. Gimbel, 202 Pa. St. 30; s. c. 51 Atl. Rep. 357. 14 Pa. Act Apr. 15, 1851 (P. L. 669), § 19. |