and not to merely extend, from time to time, the class of actions which survived. In fact, the series of provisos contained in the statutes indicates that the legislature was being very careful that such a result would not inadvertently occur. All this makes it rather clear that the subsequent legislatures understood and accepted the five year provision of the Act of 1849 as applying only to such actions as, at that time, survived.
Judgment may be entered for the defendant.
At the original argument, the decision of the Supreme Court of Appeals of Virginia in United States Fidelity & Guaranty Co. v. Blue Diamond Coal Co., 161 Va. 373, 170 S.E. 728, seemed to me to be dispositive of the question involved, and I still think that it is. The Act of 1928, dealing with actions for personal injuries, which the Court had before it in the United States Fidelity & Guaranty Co. case, was not a survival Act so far as the injured person was concerned, but as to the wrongdoer it certainly was. Having provided merely for the non-abatement of an action brought by an injured person in his lifetime, by reason of his death, when it came to deal with a case where the party who died was the wrongdoer, the Act expressly provided for the survival of the right of action against him, not merely of any action that may have been pending. Thus the survival provision of the Act came exactly within the language of the limitation section, Sec. 11, Ch. 149 of the 1849 Code, which provided a five year period for 'Every personal action * * * of such nature, that in case a party die, it can be brought by or against his representative', and it certainly added a new type of action to the class of those which could be brought after the death of one of the parties. In other words, if the class of actions to which a five year limitation was assigned were expansible, the Act of 1928 would have expanded it. Nevertheless, the Court held that the statute of limitations as to actions for personal injuries remained at one year and was not extended to five years when a new survival action was created by the Act of 1928. The Court could not have so held had the five year limitation class been an expansible one. The Court did not discuss the point but the decision necessarily negatives the plaintiff's contention here.
Several cases stressed by the plaintiff at the reargument do not in my judgment change the force and effect of the United State Fidelity & Guaranty Co. decision. All of the cases in question construe the Virginia statute providing for the survival of causes of action for injury to the estate or property of the decedent. This statute was enacted in its present form as Title 38, Chapter 130, Section 20, of the Virginia Code of 1849 which became effective at the same time that the statute of limitations became effective. Since such actions were made to survive by the same Act which provided for the limitation, they would, therefore, be within the class of actions to which the five year limitation applied when it was enacted. The decisions do not lead to the conclusion, as the plaintiff contends, that the statute of limitations was an open-end statute. References to a change from the common law contained in some of the opinions obviously refer to the common law before it was changed by statute in Virginia.
Certain of the cases have to do with causes of action which in their present form were unknown to the common law, e.g. the anti-trust laws and the wrongful death act. Such causes of action were analyzed and considered by the courts with reference to whether or not they fitted into the type of actions which were an injury to property or estate or whether they were essentially for injury to the person. After determining this question, the courts then applied the law as it existed in 1849. In other words, the inquiry in each case was essentially whether, if the cause of action were brought in 1849, it would have survived under the statutory law as it existed then.
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