#### KATHERINE R. TIEFFENBRUN, Widow of JAMES H. TIEFFENBRUN, v. J. P. FLANNERY.

(Filed 26 February, 1930.)

Death B a — In action by nonresident for wrongful death occurring in another- state our statute prescribing time within which it must be brought controls.

O. S., 160, giving tbe right of action for a wrongful death to the administrator of the deceased confers a right not existing at common law, and the provision that the action be brought within one year is a condir tion annexed to the cause of action and also a statute of limitation in regard thereto, and an action brought against a resident defendant by a nonresident plaintiff for a wrongful death occurring in another State is controlled by our statute prescribing the time within which such action can be brought and not a general statute of the State in which the death occurred which allows a longer period.

Civil action, before Moore, J., at March Term, 1929, of Gítilfoed.

Tbe plaintiff is a citizen and resident of tbe State of Missouri, and is tbe widow of James H. Tieffenbrun, and is also administratrix of bis estate under appointment by tbe Probate Court of Duncan County, Missouri.

On 30 August, 1925, in tbe city of Miami, State of Florida, tbe said James H. Tieffenbrun was struck by an automobile owned and operated by tbe defendant, wbo is a resident of tbe county of Guilford, North Carolina. As a result of tbe injury so received Tieffenbrun died in Florida on 30 August, 1925. On 29 August, 1927, tbe plaintiff instituted this suit in Guilford County, North Carolina, against tbe defendant for tbe recovery of damages for tbe wrongful death of said Tieffen-brun. Tbe plaintiff is tbe wife of said deceased and alleges that tbe death of her husband was occasioned and brought about by tbe negligence of defendant in driving and operating his automobile and in violation of certain statutes of Florida, regulating the operation of motor vehicles, which statutes were introduced in evidence at tbe trial.

Tbe defendant filed an answer denying tbe allegations of tbe complaint and alleging that tbe action could not be maintained for that :

(1) Tbe widow of said deceased could not maintain an action for wrongful death in tbe courts of North Carolina by virtue of tbe dissimilarity of tbe pertinent statutes of North Carolina and Florida.

(2) Tbe suit was brought more than one year after tbe death of said deceased and could not be maintained in tbe courts of this State by virtue of tbe applicability of C. S., 160.

*398The following judgment was rendered:

“Tbis cause coming on to be beard and being beard by tbe Hon. "Walter E. Moore, judge presiding at tbe March Civil Term, 1929, of tbe Superior Court of Guilford County, and a jury, and tbe jury having been empaneled, tbe pleadings read, tbe summons introduced in evidence by tbe plaintiff, and counsel for plaintiff and defendant having agreed and admitted in open court that tbe statutory laws of Florida as set out in tbe complaint are correctly set out therein, and furthermore, that tbe statute of limitations of tbe State of Florida applicable to actions for wrongful death is not contained in tbe statute creating such right of action, and that it is not a condition of such action, but is a general statute of limitations contained in .a separate statute, to wit, in tbe Revised General Statutes of Florida for 1920, section 2930, subsection 6, which reads as follows:

“ 'Within two years — An action by another than tbe State upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; an action arising upon account of an act causing a wrongful death’; that tbe said James H. Tieffenbrun, deceased, died on 30 August, 1925. Upon said pleadings, evidence, admissions and agreements, counsel for defendant thereupon made a motion to dismiss said action, for that tbe same is barred by Consolidated Statutes, section 160, and that tbe plaintiff is not tbe proper party to maintain said action:

Thereupon, after bearing and considering tbe argument of counsel for plaintiff and counsel for tbe defendant, tbe contention of counsel for plaintiff being that tbe limit of time within which tbis action can be commenced is contained in C. S., 445, and tbe contention of counsel for defendant that it is contained in C. S., 160, tbe court finds tbe following facts:

(1) That tbis action was instituted for tbe purpose of recovering damages on account of tbe wrongful death of James H. Tieffenbrun in tbe city of Miami, State of Florida, which death occurred on 30 August, 1925;

(2) That a summons was issued in tbis action by tbe clerk of tbe Superior Court of Guilford County on 29 August, 1927, directed to tbe sheriff of Guilford County, and that tbe said summons was served on tbe defendant on tbe said 29 August, 1927;

(3) That tbis action was instituted by tbe plaintiff individually as tbe widow óf James H. Tieffenbrun;

(4) That tbe statute of limitations of tbe State of Florida above set out applicable to actions for wrongful death is not applicable to tbis action, tbe same being a general statute of limitations of two years not *399contained in tbe wrongful death statute of tbe State of Florida set out in tbe complaint herein, and not being a condition of such action.

From tbe foregoing, tbe court being of opinion that this action is barred bj tbe time limit contained in C. S., 160, and furthermore that this action cannot be maintained by tbe plaintiff individually:

It is thereupon considered, ordered and adjudged, that tbe defendant’s motion to dismiss this action be, and tbe same is hereby granted, and that tbe said action be, and tbe same is hereby dismissed, and that tbe plaintiff be taxed with tbe cost of said action.”

From judgment rendered tbe plaintiff appealed.

Frazier & Frazier, of Greensboro, N. G., .and Randolph & Randolph, of St. J oseph, Missouri, for plaintiff.

R. M. Robinson for defendant.

BeogdeN, J.

Can an action for wrongful death be maintained in tbe courts of this State upon a cause of action created by tbe law of a foreign State for a killing occurring in said foreign State more than one year from tbe time tbe action is instituted in this State ?

C. S., 160, was originally enacted by chapter 39, Public Laws of 1854, and appeared in tbe Revised Code of 1854 in chapter 1, sections 8, 9, 10 and 11 thereof. Tbe original verbiage of tbe act has been changed from ’ time to time and amendments have been added thereto, but these changes have no bearing upon tbe merits of tbe question at issue.

Tbe statute has Been construed in many decisions of this Court, notably: Taylor v. Iron Co., 94 N. C., 525; Best v. Kinston, 106 N. C., 205, 10 S. E., 997; Hartness v. Pharr, 133 N. C., 566, 45 S. E., 901; Lassiter v. R. R., 136 N. C., 89, 48 S. E., 642; Hall v. R. R., 146 N. C., 345, 59 S. E., 879; Gulledge v. R. R., 147 N. C., 234, 60 S. E., 1134; Gulledge v. R. R., 148 N. C., 567, 62 S. E., 732; Hall v. R. R., 149 N. C., 108, 62 S. E., 899; Trull v. R. R., 151 N. C., 545, 66 S. E., 586; Harrington v. Wadesboro, 153 N. C., 437, 69 S. E., 399; Abernethy v. R. R., 159 N. C., 340, 74 S. E., 890; Bennett v. R. R., 159 N. C., 346, 74 S. E., 883; Broadnax v. Broadnax, 160 N. C., 432, 76 S. E., 216; Hood v. Telegraph Co., 162 N. C., 70, 77 S. E., 1096; Mitchell v. Talley, 182 N. C., 683, 109 S. E., 882; Capps v. R. R., 183 N. C., 181, 111 S. E., 533; Hatch v. R. R., 183 N. C., 617, 112 S. E., 529; Tonkins v. Cooper, 187 N. C., 570, 122 S. E., 294; Craig v. Lumber Co., 189 N. C., 137, 126 S. E., 312; McGuire v. Lumber Co., 190 N. C., 806, 131 S. E., 274; Hanes v. Utilities Co., 191 N. C., 13, 131 S. E., 402; Avery v. Brantley, 191 N. C., 396, 131 S. E., 721; Holloway v. Moser, 193 N. C., 185, 136 S. E., 375; Hanie v. Penland, 193 N. C., 800, 138 S. E., 165; Brooks v. *400 Lumber Co., 194 N. C., 141, 138 S. E., 532; Hines v. Foundation, 196 N. C., 322, 145 S. E., 612; Neely v. Minus, 196 N. C., 345, 145 S. E., 771.

These decisions have settled the following aspects of wrongful death in this jurisdiction:

(1) No suit can be maintained upon a cause of action arising in this State by any person except an executor or administrator duly appointed by the local court. Hall v. R. R., supra.

(2) If a wife sues in her individual capacity, and after the expiration of one year, seeks to amend by adding the word “administratrix” after her name, the action then becomes a new and independent suit, and the court has no power to permit such amendment. However, if the suit is brought under the Employer’s Liability Act, such an amendment made after two years does not constitute a new action. R. R. v. Wulf, 226 U. S., 570; R. R. v. Weyler, 158 U. S., 285.

(3) The law of a foreign State where the cause of action arose pleaded in our courts by way of amendment does not constitute a new cause of action. Lassiter v. R. R., supra.

(4) If an action brought within a year is nonsuited, a new action may be brought within one year after such nonsuit. Trull v. R. R., supra.

(5) Attachment will lie in actions for wrongful death. Mitchell v. Talley, supra.

(6) The action does not abate by reason of the death of defendant. Tonkins v. Cooper, supra.

(7) A wife cannot recover damages for mental anguish and loss of consortium by reason of the wrongful killing of her husband. Craig v. Lumber Co., supra; Hinnant v. Power Co., 189 N. C., 120, 126 S. E., 307. See, also, McDaniel v. Trent Mills, 197 N. C., 342.

(8) The father of a minor child is entitled to one-half of recovery although divorced from the mother who brings the suit as adminis-tratrix of such minor. Avery v. Brantley, supra.

(9) The deposition of an injured party duly and properly taken in a suit for damages for personal injury is competent in an action for the wrongful death of such party. Hartis v. Electric R. R., 162 N. C., 236, 78 S. E., 164.

(10) If there is a discontinuance, a new summons issued after one year, constitutes a new action, which is not maintainable. McGuire v. Lumber Co., supra.

(11) The fact that a defendant is a nonresident does not excuse the failure to bring a suit within one year. Neely v. Minus, supra.

(12) A widow’s year’s allowance or support cannot be allotted out of the proceeds of a recovery, Broadnax v. Broadnax, supra.

*401(13) Commissions of tbe administrator, court costs and expenses, and counsel fees may be paid out of tbe recovery. Baker v. R. R., 91 N. C., 308.

(14) If tbe cause of action arose in a foreign State, issues of fact must be determined by tbe rules of evidence obtaining in tbis jurisdiction. However, tbe issues are governed by tbe law of tbe State where tbe cause of action arose. Harrison v. R. R., 168 N. C., 382, 84 S. E., 519.

In all of our decisions upon tbe subject tbe general principle is announced that tbe time limit of one year prescribed in C. S., 160, is a condition annexed to tbe cause of action. Construing tbe statute in Taylor v. Cranberry Iron Co., 94 N. C., 525, tbis Court said: “Tbis is not strictly a statute of limitation. It gives a right of action that would not otherwise exist, and tbe action to enforce it, must be brought within one year after tbe death of tbe testator or intestate, else tbe right of action will be lost. It must be accepted in all respects as tbe statute gives it. 'Why tbe action was not brought within tbe time does not appear, but any explanation in that respect would be unavailing, as there is no saving clause as to tbe time within which tbe action must be begun.”

It has also been held in a long line of cases that it is not necessary to plead C. S., 160, as a statute of limitation, but that evidence must be introduced at tbe trial showing that tbe action was brought within tbe statutory period. In some of tbe cases tbe time clause is referred to as a “statutory condition of liability.” Tbe overwhelming weight of authority, declared in textbooks and in decisions of Appellate Courts, is to tbe effect that tbe time clause is a condition annexed to tbe cause of action. It is also thoroughly settled that an action for wrongful death is transitory.

In view of tbe aforesaid principles of law, tbe plaintiff asserts that she has tbe right to maintain an action in tbe courts of North Carolina for tbe death of her husband in Florida, occasioned by tbe negligence of a resident of tbis State. She proceeds upon tbe theory that by reason of tbe fact that such causes of action are transitory they follow tbe person, and can, therefore, be asserted in any forum which has jurisdiction of tbe parties and of tbe cause of action. Furthermore, if tbe time limit contained in C. S., 160, is annexed to tbe cause of action, it cannot be a statute of limitations, and as she brings to North Carolina a valid cause of action from Florida, she is entitled to maintain tbe same in our courts.

Tbe record discloses that tbe Florida statute of limitations applicable is two years from tbe time of death, and tbis suit was brought in Guil-ford County on tbe day preceding tbe expiration of tbe two-year period. *402Tbe determinative question, tben, is whether the time limit of 0. S., 160, constitutes a statute of limitation as well as a condition annexed to liability.

“Statutes of limitation are such legislative enactments as prescribe the periods within which actions may be brought upon certain claims, or within which certain rights may be enforced. Statutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are statutes of limitations.” Wood on Limitations, Mol. 1, sec. 1. It is a general rule declared in the textbooks and in the decisions of Appellate Courts that statutes of limitations being procedural in nature and working upon the remedy, govern the cause of action in the particular forum in which such cause of action is asserted. In other words, the statute of limitations of the place of trial, or lex fori, governs the action.

The case at bar, therefore, squarely presents the question as to whether a cause of action arising in one State can be maintained in another State having a shorter time period. This question has occasioned extensive debate among textwriters and judges. Wharton on Conflict of Laws, 3 ed., Yol. II, page 1264, says: “While the bar of the statute by which the cause of action is created thus precludes the maintenance of an action thereon in another jurisdiction, the law of which allows a longer period, the converse is not necessarily true; though some of the cases hold that the statute creating the cause of action governs in this respect, when it prescribes a longer, as well as when it prescribes a shorter, period than that fixed by the law of the forum. This view, however, seems to rest upon a misapprehension. The reason the lapse of the time prescribed by the statute creating the cause of action prevents the maintenance of an action in another jurisdiction is that it extinguishes the cause of action, and there is thenceforth nothing to support an action in any jurisdiction. Assuming, however, that the time allowed by the foreign statute creating the cause of action has not expired, the plaintiff comes to the bar of the forum with a concededly existing cause of action; but it is not apparent why an action thereon does not, as in the case of an existing cause of action at common law, fall within the operation of the general principle that the limitation of actions is governed by the law of the forum.” The contrary theory is announced in Keep v. National Tube Co., 154 Fed., 121, and in Theroux v. Northern Pac. R. R. Co., 64 Fed., 84. In the Keep case, supra, the injured party died in Minnesota. The administrator brought suit in the Federal Court of New Jersey. The statute of the forum, to wit, New Jersey, provided that the suit should be brought by the personal representative of the deceased, and that the recovery was for the exclusive benefit of the widow and next of kin. The time limit was *403twelve months. The Minnesota statute, where the death occurred, limited the recovery to $5,000, and the time limit prescribed was two years. The Court said: “The record of this case shows, however, that this action was commenced more than twelve months after the death of the plaintiff’s intestate, though within two years from that time. The defendant contends that no action can be maintained on the Minnesota statute in New Jersey after the expiration of the period of twelve months limited in the New Jersey statute. It is true that actions are barred not by the lex lo'ci, but the lex fori; but the limitation of time within which an action may be instituted under the Minnesota statute, or that within which it may be instituted under the New Jersey statute, is so connected with the right of action itself that it does not operate as a mere limitation of time within which the remedy may be prosecuted. A general statute of limitations curtails a preexistent common-law right; but the right of action for damages resulting from death is unknown to the common law. It is a new right created by statute for a limited period. In Minnesota that right exists for two years; in New Jersey it exists for twelve months. One who acquires such a right under the New Jersey statute, or under the Minnesota statute, may carry it with him into any jurisdiction where a substantially similar right has been created. Why should the time within which such a right may be enforced be curtailed in a jurisdiction different from that in which the right was created by any statute other than one which, like a general statute of limitations, operates on the remedy only?”

In the Theroux case the death occurred in Montana and suit was brought in Minnesota. The Montana statute prescribed three years, and the Minnesota statute two years. The suit was brought after two years, but within the three-year period. The Theroux case declares: “It follows, of course, that, if the courts of another State refuse to permit the cause of action to be sued upon during a part of the period limited by the foreign law, to that extent they refuse to give effect to the foreign law, and by so doing impair the rights intended to be created.” Many authorities are cited and quoted from in both cases. Negaubauer v. Great Northern R. R. Co., 99 N. W., 620, 2 Ann. Cas.; Brunswick Terminal Co. v. National Bank, 99 Fed., 635, 48 L. R. A., 625.

The author of a note upon the question in 46 L. R. A. (N. S.), p. 687, discusses the cases dealing with the conflict arising by virtue of a longer period of limitation-in the State where the cause of action arose and the shorter period of limitation in the State where the suit is brought. After summarizing the various arguments, he concludes as follows: “As already stated, it is not apparent why the doctrine that the limitation prescribed by the foreign statute which creates the right of action, so that the latter is extinguished when the time so prescribed has expired, *404and will not thereafter sustain an action anywhere, should exclude the operation of the general rule which refers the question of limitation to the lex fon if the period prescribed by the foreign statute has not expired.” Goodrich on Conflict of Laws, p. 171, says: “Suit on a cause of action created by statute thus limiting the right must, then, be brought within the time fixed by the law creating the claim. Suppose, however, that the lex fori creates a cause of action under similar circumstances, but provides a shorter limitation period. It would seem that the plaintiff could not recover if his action was not within the limitation period set by the lex fori also. The right is not gone until it is lost under the law creating it. But the statute of the forum shows the local policy as to the time in which such actions are to be brought. It could well be interpreted as limiting locally created rights, and as a precedural bar to all actions of this type, no matter where arising. The authorities are divided on the question, which cannot be regarded as settled.”

The authorities supporting both theories are assembled in a note appended to the above text.

All statutes of limitations are essentially time clocks, and while C. S., 160, has been construed as a condition annexed to the cause of action, it is also a time limit to the procedure. At all events, it is a legislative declaration of the policy of this State, providing in express and mandatory language that no action for wrongful death shall be asserted in the courts of this State after the expiration of one year from the time of death. Certainly, it is not to be supposed that the legislative department intended to confer upon nonresidents more extensive rights in the courts than accorded to citizens of this State.

Affirmed.