The appellant submits that the trial judge erred in refusing to direct a verdict for the defendant at the conclusion of the plaintiff's case and at the conclusion of all the testimony. In this we find no reversal error.
This is a case for wrongful death wherein the wrongful act occurred more than two years before the commencement of the action but the action was commenced within two years from the death.
Section 95.11 F.S.A. prescribes that "an action arising upon account of an act causing a wrongful death" can only be commenced within two years.
The appellant-defendant during trial asked leave to file a plea of the statute of limitations of two years which was denied. After an adverse verdict and judgment it appeals and assigns as error the refusal of the trial court to allow such plea to be filed.
Does the statute of limitations in a death case commence torun from the date of the wrongful act or from the date ofdeath?
Plaintiff-appellee's right of action is predicated on Section 768.01 F.S.A. which is as follows:
"RIGHT OF ACTION FOR DEATH DUE TO NEGLIGENCE — Whenever the death of any person . . . shall be caused by the wrongful act, negligence, carelessness or default of any . . . corporation, . . . and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action. . . . To recover damages in respect thereof, then and in every such case the person or persons who, or the corporation which *Page 455 would have been liable in damages if death had not ensued, shall be liable to an action for damages. . . . Notwithstanding the death of the person injured, . . ." — which in effect holds that one causing a wrongful death "shall be liable to an action for damages . . . notwithstanding the death of the person injured."
By Section 768.02 F.S.A. it is provided that:
"Every such action shall be brought by and in the name of thewidow, . . . and where there is neither widow nor husband, nor minor child or children, . . . then by any . . . persons dependent on such person killed . . . and when there is neither of the above classes of persons to sue, then . . . by the executor or administrator . . . of the person killed. . . . and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reasonof the death of the party killed." — which in effect specified to whom the party caused a wrongful death shall be liable "by reason of such wrongful death" and that such liability shall be for "such damages as the party or parties entitled to sue may have sustained."
On this point American Jurisprudence is as follows:
"Commencement of Period Limitation. — The point of time which marks the commencement of the running of a statute limiting the right of action for death by wrongful act is a matter that must be determined generally from the provisions of the statute creating the limitation. The statutes that have been enacted in the different jurisdictions vary considerably in their phraseology, and there is a resulting diversity of opinion as to whether the period within which suit must be commenced is to be computed from the time of the injury, the date of the decedent's death, or the time when a personal representative is appointed. Many wrongful death statutes merely prescribe the limitation without any express provision fixing the time from which it shall run. In some cases, it has been held that the limitations begin to run from the date of the injury, and not from the death of the injured person. This view is sometimes based on the ground that the statute does not create a new or independent cause of action, but merely continues the right of action which accrued to the deceased at the time of the injury. The general rule, however, is that *Page 456 the cause of action accrues and the statute runs from the time of the death, . . ." — 16 Am. Jur. Sec. 167.
The foregoing authority cites Collins v. Hall 117 Fla. 282,157 So. 646, as authority contrary to the conclusion we have reached but the decision in that case turned on another point and the language therein on the point here involved was as follows:
"This makes it unnecessary for us to decide the question relating to the sufficiency of the plea of the statute of limitations; that is, whether, in an action for wrongful death under the statute, the statute of limitations begins to run from the time of the alleged wrongful act causing the death, or from the time of the death subsequently ensuing. However, we might observe in passing that it would appear from the language of paragraph 6 of Section 4663, Comp. Gen. Laws, construed in the light of what was said in the case of Kirton v. Atlantic Coast Line R. Co., 57 Fla. 87, 49 So. 1024, that the plea of the statute of limitations was also good. . . ."
It will not be deemed necessary to cite the holdings of this court to the effect that the foregoing provisions of statute have been held to create a new cause of action.
Plaintiff-appellee's cause of action is dependent on death and it is our conclusion that it was the intent of Section95.11 F.S.A. to limit the commencement of the action from the time of the accrual of plaintiff's cause and plaintiff's cause accrued on death. It speaks of commencement of actions after so many years and by reasonable implication it means so many years after the right of action has accrued. Plaintiff's cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause. The statute of limitations commenced to run upon death.
Affirmed.
TERRELL and CHAPMAN, JJ., and TAYLOR, Associate Justice, concur.
THOMAS, C. J. and PARKS, Associate Justice concur in conclusion.
*Page 457BUFORD, J., dissents.