dissenting. While the majority decision may speak well of the equities in permitting the appellant to file this wrongful death action, it is not supported by the law.
It is elementary to say that Arkansas courts follow the prevailing rule that where a cause of action does not exist at common law, but is created by the statutes of a state, it exists only in the manner and form and for the length of time prescribed by the statute of the state which created it. See Smith v. Missouri-Pacific R. R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927). The court in Smith, quoting from Ernest v. St. Louis, Memphis & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141 (1908), said:
[W]e conclude that it is now well settled that, where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought.
Here, the applicable statute is Ark. Stat. Ann. § 27-907 (Supp. 1985), as amended by Act 625 of 1981, which provides:
Every such action shall be brought by and in the name of the personal representative of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every such action authorized by this act, shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. If a nonsuit be suffered, such action shall be brought within one year from the date of such non-suit without regard to the date of death ofsuch person alleged to have been wrongfully killed.
As can be readily discerned, the final sentence in § 27-907 establishes the limitation period following a nonsuit and does so in unambiguous language. Simply put, § 27-907 provides that a wrongful death action must be commenced within three years after the person’s death; however, if that action is nonsuited, such action must be filed within one year from the date of the nonsuit — without regard to the date of the person’s death.
Now, the majority holds § 27-907 does not mean what it says. Instead, the majority’s interpretation of § 27-907 changes the final sentence of that statute, in effect, to read:
If a nonsuit be suffered, such [wrongful death] action must be filed within one year from the date of the nonsuit without regard to the date of the person’s death, except such action may be recommenced more than one year after the date of nonsuit if the action is brought within three years from the date of death.
In adding the above language by judicial fiat to meet its interpretation of § 27-907, the majority ignores the longstanding rules on construction of statutes enacted in derogation of common .law, and, in particular, as these rules apply to limitation provisions. Smith v. Missouri-Pacific R. R. Co., 175 Ark. 626, 1 S.W.2d 48. Because of the decedent’s unfortunate death, a natural tendency exists to provide an extension of the limitation to permit the filing of appellant’s case. While I am personally sympathetic with the appellant’s request to permit her filing this action, I believe the majority is wrong in doing so and its construction of § 27-907 to lengthen the limitations runs counter to settled law.
My view of how this court is supposed to construe and interpret our wrongful death law and applicable limitation provisions is based upon the court’s previous holdings in Vines v. Arkansas Power & Light Company, 232 Ark. 173, 337 S.W.2d 722 (1960) and Sugg v. Continental Oil Company, 270 Ark. 882, 608 S.W.2d 1 (1980). The majority cites these cases but refuses to apply the underlying principles to the case at hand; instead the majority suggests the special limitation statute, § 27-907, is somehow ambiguous and then proceeds, contrary to applicable rules of construction, to engraft a meaning to that statute which is not supported in any fashion by the provision’s expressed terms. Although such a construction has been held proper when considering a general savings statute and a general statute of limitation, see Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965), the court has not authorized such a construction when considering the wrongful death statute, which, as noted earlier, is in derogation of common law.
This case involves a legal issue that should be addressed by the Arkansas General Assembly. The majority, in my opinion, commits error by giving meaning to § 27-907 which cannot be supported, either directly or impliedly, by its statutory terms.
Hickman and Hays, JJ., join in this dissent.