It would be a miscarriage of justice to recover upon a statute
not governing the case in a suit which the statute itself declared
commenced too late to be maintained.
A right may be waived or lost by failure to assert it at a
proper time. Burnet v. Desmornes, 226 U.
Even though not pleaded, if defendant insists on the point that
an action based on the Employers' Liability Act of 1908 has been
brought too late and the answer admits that fact, the action cannot
Congress within its sphere is a paramount authority over the
states, and courts cannot, where the will of Congress plainly
appears, allow substantive rights to be impaired under the name of
163 N.C. 186 reversed.
The facts, which involve the validity of a judgment for personal
injuries based on the Employers' Liability Act of 1908, are stated
in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The plaintiff (defendant in error) was a fireman employed by the
defendant. On October 5, 1907, he was injured by its negligence
while working upon a train running from South Carolina to North
Carolina. He brought this
Page 239 U. S. 200
action on January 7, 1910, and judgment was ordered for a
certain sum by the supreme court of the state. 163 N.C. 186. The
supreme court assumed that the case was governed by the act of
April 22, 1908, c. 149, 35 Stat. 65. Two errors are assigned.
First, in holding that statute applicable to the cause of action,
and second, in allowing a recovery under it in an action begun more
than two years after the cause of action accrued. Id.,
6. The case was not argued in this Court on behalf of the defendant
in error, but we gather from the record in the opinion that, while
at the trial, the railroad, upon issues not before us, insisted
that the federal statute was not applicable, the contrary was
admitted before the supreme court, so that, although the admission
seems to have been made with the second question only in view, the
first point would appear not to have been drawn to the attention of
either court, and there was no discussion of how the case would
stand apart from the act. The second objection was met by deciding
that the limitation of two years imposed by § 6 could not be relied
upon for want of a plea setting it up.
It would seem a miscarriage of justice if the plaintiff should
recover upon a statute that did not govern the case, in a suit that
the same act declared too late to be maintained. A right may be
waived or lost by a failure to assert it at the proper time
(Burnet v. Desmornes, 226 U. S. 145
but when a party has meant to insist on all the rights it might
have, such a result would be unusual and extreme. The record shows
a case to which the Act of 1908 did not apply, Winfree v.
Northern Pacific Ry., 227 U. S. 296
which the earlier Act of 1906 probably could not affect.
Employers' Liability Cases, 207 U.
, 207 U. S. 489
It also shows that the action was brought too late, and that the
defendant insisted upon that point, although it had not pleaded
what was apparent on the allegations of the declaration and the
admissions of the answer.
Page 239 U. S. 201
In dealing with the enactments of a paramount authority, such as
Congress is, within its sphere, over the states, we are not to be
curious in nomenclature if Congress has made its will plain, nor to
allow substantive rights to be impaired under the name of
procedure. Central Vermont Railway v. White, 238 U.
, 238 U. S. 511
But, irrespective of the fact that the act of Congress is
paramount, when a law that is relied on as a source of an
obligation in tort sets a limit to the existence of what it
creates, other jurisdictions naturally have been disinclined to
press the obligation farther. Davis v. Mills, 194 U.
, 194 U. S. 454
The Harrisburg, 119 U. S. 199
There may be special reasons for regarding such obligations imposed
upon railroads by the statutes of the United States as so limited.
Phillips Co. v. Grand Trunk Western Ry. Co., 236 U.
, 236 U. S. 667
At all events, the act of Congress creates the only obligation that
has existed since its enactment in a case like this, whatever
similar ones formerly may have been found under local law emanating
from a different source. Winfree v. Northern Pacific Ry.,
227 U. S. 296
227 U. S. 302
If it be available in a state court to found a right, and the
record shows a lapse of time after which the act says that no
action shall be maintained, the action must fail in the courts of a
state as in those of the United States.
The ground that we have stated is sufficient for the reversal of
the judgment so far as it proceeds upon the Act of 1908, and
therefore we are relieved from the necessity of deciding whether
the record is in such shape that the even more fundamental
objection to the application of the act cannot be considered by