Natseway v. Jojola

251 P.2d 274, 56 N.M. 793

• Court: New Mexico Supreme Court
• Decided: December 26, 1952
• Docket: 5542
• Status: Published

Opinions

SADLER, Justice.

The question for decision is whether the cause of action mentioned in'1941 Comp. Sec. 24-102, of our death by wrongful act statute as being barred within one year from date of its accrual arises upon infliction of the injury later resulting in death or comes into being at death.

The present action was filed in the district court of Bernalillo County on October 22, 1951, by Joseph G. Natseway and Lupita Natseway, his wife, as joint administrators of Raymond Natseway, deceased, against Charles Jojola and Juanita Jojola, husband and wife, seeking damages in the sum of $15,000 for the death of plaintiffs’ minor son, 9 years of age, who resided with them at their home on the Isleta Pueblo in Bernalillo County, New Mexico.

The complaint sets forth as the “wrongful act, neglect or default” of which the defendants were claimed to be guilty the purchase and gift to their minor son, 12 years of age, as a Christmas present, a 22 caliber rifle which he discharged indiscriminately and carelessly in the neighborhood of the homes, of plaintiffs and defendants, inflicting a fatal wound on plaintiffs’ son on December 28, 1949, from which he died on March 28, 1951. The complaint further disclosed by way of allegation that the injured boy was hospitalized and under the treatment of doctors, surgeons and nurses in an effort “to cure or leviate his' wound or wounds,” as a result whereof the plaintiffs paid out and incurred expenses of about $3,000, to their total damage in the sum of $15,000' for which they prayed judgment.

The record in this case presents us with a state of facts which it is difficult to understand. The complaint discloses a wound inflicted upon plaintiffs’ intestate on December 28, 1949, by the discharge of a 22 caliber rifle held in the hands of the minor son of defendants. The allegations of the complaint further disclose that the injured boy survived the injury and died therefrom on March 28, 1951. The complaint was filed on October 22, 1951, well within one year following death.

The defendants filed two motions to dismiss, the first one on October 22, 1951, asserting the complaint to be bad because “it appears from the face thereof that it fails to state a claim upon which relief can be granted.” Another entitled “First Amended Motion to Dismiss” was filed May 7, 1952, in which defendants seek a dismissal for the stated reason “that said complaint was filed more than one year after death of plaintiffs’ intestate, and that the cause of action is, therefore, barred by virtue of the provisions of Sec. 24 — 102, N.M.S.A.'(1941).”

The court heard argument on defendants’ first amended motion to dismiss and entered the following order, omitting formal parts, to-wit:

“Finds that the complaint herein filed more than one year after the • death of plaintiffs’ intestate, the 'cause of action is, therefore, barred by virtue of the provisions of Section 24-102, N.M.S.A. (1941);

“It is therefore ordered that the ■complaint of plaintiffs be and the same hereby is dismissed with prejudice.”

Notwithstanding the confusion thus arising on the fact that defendants’ amended motion to dismiss because the complaint was filed more than one year from death of decedent and appears on its face to have been argued on that basis, as well as to have been decided upon that ground, in a highly commendable effort to have this case decided upon the real issue of law involved, 'being the ground which he states it was "argued below/plaintiffs’ counsel asks us to read the amended motion as if it sought dismissal “for the reason that * * * the cause of action is * * * barred by the provisions of Section 24-102, N.M.S.A. (1941).” He points out that the complaint was filed well within one year from the date of the death of decedent and that, if determined upon the ground set forth in the motion, a reversal would be almost automatic.

Thus it is that counsel for plaintiffs guides us quickly to the real question involved on this appeal and asks us to determine it. That question is stated in the opening paragraph of this opinion, namely, whether the cause of action asserted is barred under the provisions of 1941 Comp. Sec. 24 — 102, because not filed within one .year from the accrual of the cause of action, treating the time of injury as date of accrual. If we are correct in the conclusion we have reached that it is barred under prior decisions of this Court, then regardless of the erroneous grounds advanced for dismissal in the amended motion to dismiss and of the fact that the trial court’s order sustaining said motion falls into the same error, we should have been compelled to notice the error and misapprehension as fundamental and to announce the result we hereinafter declare.

The complaint seeks recovery under the provisions of 1941 Comp. Sec. 24 — 101, reading as follows:

“Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.”

The same act which created the right conferred by the preceding section, L. 1882, c. 61, also carried a limitation in section 9 thereof, reading as follows and now found as 1941 Comp. Sec. 24-102, to-wit:

“Every action instituted by virtue of the provisions of this and the preceding section must be brought within one (1) year after the cause of action shall have accrued.”

We have in two earlier decisions by this Court held this to be a survival statute. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, and State ex rel. De Moss v. District Court, 55 N.M. 135, 227 P.2d 937, 938. In other words we held in Hogsett v. Hanna, supra, that the intervention of death following the injury which caused it creates no new cause of action in favor of the beneficiaries. And in the De Moss case, although the complaint was filed within one year from death of decedent, yet more than one year after infliction of the injury causing it, we held that “not only the remedy but the right to maintain the suit was barred at the time the complaint was filed.”

Under the authority of the two decisions mentioned it would seem to follow as night the day that the cause of action in plaintiffs for the injuries to and death of the intestate, their son, was barred unless some good reason differentiating this case from the Hogsett and De Moss cases can be pointed out. The plaintiffs’ counsel thinks he finds that distinction in the fact of the infancy of plaintiffs’ intestate, a matter we shall next consider.

We thus observe that counsel for plaintiffs ingeniously assails the position of defendants with a two-edged sword, to speak figuratively. First, he advances the proposition that the cause of action asserted by plaintiffs did not arise until death of their intestate. In presenting this claim they are blocked at the very start by the two prior decisions of this Court in Hogsett v. Hanna, supra, and in the De Moss case. Seeking, then, to detour this road block of precedent barring their path, they sieze upon the fact of the intestate’s infancy to afford them safe passage around it. In so doing they again meet with obstacles by way of precedent, reason and logic just as difficult to sufmouflt. ■

The argument is that if the intestate had been an adult our decisions in Hogsett v. Hanna, supra, and the De Moss case holding 1941 Comp. Sec. 24-101 to be a “survival” statute and the cause of action to arise upon commission of the tort would serve as an absolute bar to prosecution of the suit. The intestate being a minor, however, changes the situation and those decisions cannot control, says counsel for plaintiffs. He argues that the infancy of the intestate brings the case under the saving clause for infants found in the statutes on general limitations as 1941 Comp. Sec. 27-109, reading as follows:

“The times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and persons insane or under any legal disability, be extended so that they shall have one (1) year from and after the termination of such disability within which to commence said actions.”

Two complete answers to this contention confront the plaintiffs. In the first place, the statute under which they claim creates a new right and in the very act creating it limits the time within which it may be prosecuted. It was thus a limitation, not on the remedy alone, but on the right itself. See State ex rel. De Moss v. District Court, supra, where speaking of the nature, of the statute, we said:

“It is clear that not only the remedy but the right to maintain the suit was barred at the time the complaint was filed.”

See, also, 16 A.J. 114, Sec. 168 under “Death”; Taylor v. American Employers’ Insurance Co., 35 N.M. 544, 3 P.2d 76;. Foster v. Yazoo & Miss. Valley R. Co., 72 Miss. 886, 18 So. 380; Blaser v. Osage River Gravel Co., Mo.Sup., 219 S.W. 585.

Still other considerations remove this case from an application of the statute providing a saving clause in behalf of infants, cited above as 1941 Comp. Sec. 27— 109. Under the express language of the saving clause, it is limited in its application to actions described in the preceding sections of the act of which the death by wrongful act is not one. Furthermore, 1941 Comp. Sec. 27-116, L.1880, c. 5, Sec. 16, plainly removes the saving clause from application here. It reads:

“None of the provisions of this chapter shall apply to any action or suit which, by any particular statute of this state, is limited to be commenced within a different time, nor shall this chapter ibe construed to repeal any existing statute of the state which provides a limita- . tion of any action; but in such cases the limitation shall be as provided by such statutes.”

There is no* saving clause in the limitation provision of the death by wrongful act statute and the courts cannot provide a saving clause or create an exception where the statute contains none. 16 A.J. 114, Sec. 169 under “Death”; 25 C.J.S., Death, § 53(b), page 1158. See, also Field v. Turner, 56 N.M. 31, 239 P.2d 723.

The facts of the present case are not unlike those present in our former decision in Vukovich v. St. Louis, Rocky Mountain & Pacific Co., 40 N.M. 374, 60 P.2d 356, 357, in many respects. We were construing certain provisions of our Workmen’s Compensation Law, cited as 1929 Comp., Sec. 156— 101 et seq. and we held that where an employee died on June 1, 1932, from injuries sustained on July 27, 1931, which rendered him totally disabled until date of death, claim filed on April 1, 1933, was too late, since claim must be filed within one year of date of injury. The controlling statute provided that in the event a compensable injury should be the proximate cause of an employee’s death claim therefor, under the conditions named, could be filed on behalf of the beneficiaries, adding:

“Provided, that no claim shall be filed or suit brought to recover such compensation unless claim therefor be filed within one yedr after the date of such injury." 1929 Comp. § 156-116. (Emphasis ours.)

It was argued that the word “injury” might have two meanings referring (1) either to the physical injury or bodily hurt, or (2) connote the legal injury suffered by those in whose favor the cause of action arises by reason of the compensable death of an employee; that as used in fixing the limitation at one year “from the date of such injury” it must have been employed with the latter intendment, since until that ■event no right of action exists in the dependents; Carrying claimant’s argument a step further, the opinion states:

“Hence, the word ‘injury’ where last used in this section means ‘death,’ or includes death, and, claim having been filed within one year after death, is timely.”

We were compelled to hold that under the plain and unambiguous language of the statute the filing of the claim one year after death was not timely. In other words, it should have been filed one year from the date of the injury just as in this case. We added an observation there which is pertinent here as to any hardship that might result from such holding, to-wit:

“It is urged that to* declare the statute as having this meaning may result in great hardship in particular cases, * * *

“* * * But the fact that hardship may result can furnish no warrant for the courts to supply what the Legislature has omitted or to- omit what it has inserted. Martini v. Kemmerer Coal Co., supra [38 Wyo. 172, 265 P. 707]; Chmielewska v. Butte & Superior Mining Co., supra [81 Mont. 36, 261 P. 616], ‘What the Legislature intends is to be determined, primarily, by what it says in the act. It is only in cases of ambiguity that resort may be had to construction. Courts cannot read into an act something that is not within the manifest intention of the Legislature, as gathered from the statute itself. To do so would be to legislate, and not to interpret. There is no ambiguity in this statute, and it neither requires nor admits of construction.’ De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694, 695.”

The same thought was in our minds in State ex rel. De Moss v. District Court, supra, when we answered the contention that we should overrule our former decisions to put us in line with the present decisions of the Supreme Court of Missouri whose overruled decisions we initially followed on the theory of adopted construction in holding the questioned statute created no new cause of action in the beneficiaries on the death of the injured party. We there said:

“Our decision in that case was three years after the Cummins case,' supra, and we there followed the Missouri cases decided prior to our adoption of their statute. We feel any change in the rule should be made by the legislature and not by us." (Emphasis added.)

In his reply brief the plaintiffs’ counsel advances a novel proposition not theretofore suggested. It is as follows:

“The rule announced in the Hogsett and De Moss cases establishes that our legislature in 1882 enacted a so-called ‘survival statute,’ but such enactment was without effect upon the fact that the legislature in 1876 had already adopted ‘Lord Campbell’s Act’ as part of the British common law.”

We fail to see the merit in this contention. It is contrary to the rationale of our holdings in Hogsett v. Hanna, supra, and State ex rel. De Moss v. District Court, supra. See, also, Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942. Indeed, counsel in urging it upon us virtually concedes that our Death by Wrongful Act Statute, 1941 Comp.Sec. '24-101, is the Lord Campbell Act, calling the similarity in language and provisions “amazing,” yet seeing in this fact a “mere coincidence” in view of our holding in the Hogsett and De Moss cases that it is a “survival” statute.

It seems not to< have occurred to> counsel that in adopting the Missouri statute, both Missouri and New Mexico may have been taking so much of the Lord Campbell Act .as was deemed appropriate to their respective conditions, changing the limitation period, however, from a year after death to a year “after the cause of action shall have accrued.” If our statute is patterned after the Lord Campbell Act, with limitations one of the differences, it would be truly anomalous to have restored to it as a part of the ■common law what the legislatures of Missouri and New Mexico in adopting so much •of the Lord Campbell Act as desired had purposely modified by changing the limitations.

Should the foregoing observations be deemed insufficient to: answer the contention thus made by counsel, it affords a ■complete answer to point out that Lord ■Campbell's Act could not properly be held to come to us as a part of the common law for another controlling reason. It is a statute enacted by parliament in 1846, long subsequent to the separation of the colonies from the mother country. Territory v. Maxwell, 2 N.M. 250; Browning v. Browning, 3 N.M., Gild., 659, 9 P. 677; Territory v. Hale, 13 N.M. 181, 81 P. 583.

In closing we should mention the fact that the inaccuracy in synopsis and in the first two paragraphs of headnotes to De Moss case in mentioning “death,” instead of commission of tort, as date from which limitations run has been noticed and corrected in all subsequent printings of the opinion in the De Moss case. See Vol. 3, New Mexico Digest, Cumulative Annual Pocket Part. We accept our share of responsibility for overlooking the error when, as trustees for the State Library, we failed to catch it in approving the headnotes to this case. The decision of this Court in the De Moss case holds, in line with our earlier decision in Hogsett v. Hanna, supra, that the Death by Wrongful Act Statute, 1941 Comp. § 24—101, is a “survival” statute; that, consequently, the cause of action arises when the tort is committed, thus barring an action therefor at the end of one year thereafter.

It follows from what has been said that the district court was correct in sustaining the motion to dismiss even if it did give a wrong reason for doing SO'. Lockhart v. Wills, 9 N.M. 344, 54 P. 344. Hence, the order reviewed will be affirmed.

McGHEE and COMPTON, JJ., concur. LUJAN, C. J., not participating.