Respondent's intestate, while employed by the Philadelphia & Reading Railway Company, an interstate carrier of which petitioner is the successor, received injuries from which he died on the following day, April 23, 1915. Letters of administration were granted to respondent September 23, 1921. Five months later, on February 6, 1922, nearly seven years after the death, respondent brought the action now under review in the Pennsylvania court of common pleas to establish a liability under the federal Employers' Liability Act. Act of April 22, 1908, c. 149, 35 Stat. 65, 66, as amended by the Act of April 5, 1910, c. 173, 36 Stat. 291 (Comp. St. § 8657 et seq.).
A petition of the defendant below, petitioner here, for judgment of nol. pros. on the ground that the action, having been brought more than two years after the death, was barred by the statute of limitations, was denied (26 Dauphin County (Pa.) Reports 234), and judgment was entered for plaintiff, respondent here. On an appeal to the Supreme Court of Pennsylvania, the judgment was affirmed. 126 A. 381, 281 Pa. 270. This court granted certiorari. 45 S.C.t. 197, 266 U.S. 600, 69 L. Ed. 461.
As respondent brought his action more than two years after the death and less than two years after his appointment as administrator, the sole question presented for review is whether, in an action for wrongful death brought under the federal Employers' Liability Act, the Two-year statute of limitations begins to run at the date of the death or at the date of the appointment of the administrator of the decedent.
The federal Employers' Liability Act imposes upon common carriers by railroad, engaged in interstate commerce, liability for the death of an employee employed in such commerce, when the death results from the negligence of the carrier or its agents, and gives a right of action to the personal reppesentative of the decedent for the benefit of the surviving spouse and children of such employee, or if there are no such survivors, then for the benefit of his dependent next of kin. By section 6 of the act, it is provided:
'That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.'
The application of this statute turns on the question whether the cause of action created by the act may be deemed to have 'accrued,' within the meaning of the act, at the time of death or on the appointment of the administrator, who is the only person authorized by the statute to maintain the action. American R. R. of Porto Rico v. Birch, 32 S.C.t. 603, 224 U.S. 547, 56 L. Ed. 879; St. Louis, S. F. & T. Ry. v. Seale, 33 S.C.t. 651, 229 U.S. 156, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. The question had never been directly answered by this court, although in Missouri, K. & T. Ry. v. Wulf, 33 S.C.t. 135, 226 U.S. 570, 57 L. Ed. 355, Ann. Cas. 1914B, 134, it was assumed that the cause of action was barred in two years after the death.
It has received conflicting answers in the decisions of other courts. The decision of the First Circuit Court of Appeals in American R. R. of Porto Rico v. Coronas, 230 F. 545, 144 C. C. A. 599, L. R. A. 1916E, 1095, holding that the statute does not begin to run until the appointment of the administrator has been followed in Guinther v. Philadelphia & R. Ry. (C. C. A.) 1 F.(2d) 85, in Kierejewski v, Great Lakes Dredge & Dock Co. (D. C.) 280 F. 125, and in Bird v. Ft. Worth & Rio Grande Railway, 207 S. W. 518, 109 Tex. 323. Other cases have laid down a similar rule with respect to state laws giving a right of recovery for wrongful death. Andrews v. Hartford & New Haven R. R., 34 Conn. 57; Crapo v. City of Syracuse, 76 N. E. 465, 183 N. Y. 395.
On the other hand, the Supreme Court of Georgia (Seaboard Air Line v. Brooks, 107 S. E. 878, 151 Ga. 625) and the Supreme Court of Kansas (Giersch v. Atchison, Topeka & Santa Fe Ry., 171 P. 591, 16 A. L. R. 470) have expressly declined to follow the rule laid down in the First Circuit in American R. R. of Porto Rico v. Coronas, supra. The same result was reached in Bixler v. Pennsylvania R. R. (D. C.) 201 F. 553, and a like rule has been applied in state courts to similar state statutes. See Radezky v. Sargent & Co., 58 A. 709, 77 Conn. 110; Rodman v. Ry., 70 P. 642, 65 Kan. 645, 59 L. R. A. 704; Swisher v. Ry., 90 P. 812, 76 Kan. 97; Carden, Adm'r, v. L. & N. R. R., 39 S. W. 1027, 101 Ky. 113; Gulledge v. R. R., 60 S. E. 1134, 147 N. C. 234, 125 Am. St. Rep. 544; Hall v. R. R., 62 S. E. 899, 149 N. C. 108.