Sheets v. Graco, Inc.

292 N.W.2d 63, 1980 N.D. LEXIS 225
CourtNorth Dakota Supreme Court
DecidedApril 21, 1980
DocketCiv. No.. 9706
StatusPublished
Cited by31 cases

This text of 292 N.W.2d 63 (Sheets v. Graco, Inc.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheets v. Graco, Inc., 292 N.W.2d 63, 1980 N.D. LEXIS 225 (N.D. 1980).

Opinions

ERICKSTAD, Chief Justice.

This is an appeal from a summary judgment granted in favor of the defendants on the ground the plaintiff’s claim is barred by the statute of limitations. We affirm.

A wrongful death action was brought by the plaintiff,. Leona Sheets, the surviving wife of the late Harold T. Sheets. The incident which resulted in Harold’s death occurred on August 2, 1975, while he was spray painting a farm building near Stanley, North Dakota. While applying paint to the barn, it is alleged that the paint sprayer [65]*65discharged injecting paint into Harold’s body. As a result of this mishap, he died on September 14, 1975.

The defendants in this action, Graco, Inc., Farmers Union Central Exchange, and Farmers Union Oil Company of Powers Lake, North Dakota [hereinafter referred to collectively as Graco], are corporations engaged in the manufacture and sale of the paint and paint spraying equipment used by Harold at the time the accident occurred in August of 1975.

The present action was commenced by service of a summons and complaint on July 20, 1979, nearly four years after Harold’s death. Leona sought damages for pecuniary loss she suffered as a result of her husband’s death, including loss of property, loss of support, and loss of consortium. Her action against each of the corporations named as defendants in this lawsuit is based upon claims of negligence, strict liability, and breach of implied and expressed warranties.

Motions for summary judgment of dismissal of the complaint were filed by each of the three corporations in August of 1979, and the motions were consolidated for hearing. The ground for each of the motions was that the wrongful death action was barred by the two-year statute of limitations as set forth in Section 28-01-18(4) of the North Dakota Century Code. A hearing on the motions for summary judgment was held on October 2,1979, in Burke County District Court, Northwest Judicial District. The trial court determined that the action was barred by the statute of limitations, and summary judgment was entered on October 5, 1979. Leona appeals to this court from that judgment.

Section 32-21-01 of the North Dakota Century Code is our wrongful death statute and it provides as follows:

“32-21-01. When action for death by wrongful act maintainable —Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation or company 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 or of the tort-feasor, and although the death shall have been caused under such circumstances as- amount in law to felony.”

At common law there was no right of recovery for the wrongful or negligent injury of another which caused his death. Harshman v. Northern Pac. Ry. Co., 14 N.D. 69, 103 N.W. 412 (1905). Although the wrongful death of another involves pecuniary loss to the person seeking compensation, the right to bring such an action is purely statutory, and the statutory provisions upon which a wrongful death action can be maintained are contained in Chapter 32-21 of the North Dakota Century Code. Armstrong v. Miller, 200 N.W.2d, 282 (N.D.1972).

The wrongful death statute “is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased . .” Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 41, 121 N.W. 70, 71 (1909); see Section 32-21-03, N.D.C.C.

The amount recovered inures to the exclusive benefit of the deceased’s heirs, and said amount shall not be liable for the debts of the deceased. Section 32-21-04, N.D. C.C.

There has never been a self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C. However, Section 28-01-18, N.D.C.C., provides in pertinent part:

“28-01-18. Actions having two-year limitations — ‘The following actions must be commenced within two years after the cause of action has accrued:
# * * * # *
[66]*664. An action for injuries done to the person of another, when death ensues from such injuries, and the cause of action shall be deemed to have accrued at the time of the death of the party injured.”

Leona contends that Section 28-01-18(4), N.D.C.C., is not applicable in the case at bar because the pertinent provisions of that subsection only refer to actions “for injuries done to the person of another, when death ensues from such injuries . . . .” She argues that the present action is one for pecuniary damages she has suffered as a result of her husband’s wrongful death, brought pursuant to the Wrongful Death Act under Section 32-21-01 of the North Dakota Century Code, and that Section 32-21-01 contains no express limitation for commencement of an action brought pursuant thereto. Leona’s contention is that the present action is based upon claims against Graco of negligence, strict liability, and breach of warranty, and, therefore, in the absence of any express limitations period under the Wrongful Death Act, the applicable statute of limitations is six years. See Section 28-01-16(2), N.D.C.C.1 She argues that, because the present action was filed within four years of Harold’s death, summary judgment was improperly granted.

Generally, where there are statutory provisions which provide for a special statute of limitations in wrongful death actions, such a limitation controls regardless of the tort, contract, or breach of warranty aspects of the case. Rogers v. Smith Kline & French Laboratories, 5 Ariz.App. 553, 429 P.2d 4 (1967); 22 Am.Jur.2d, Death § 35 (1965); 25A C.J.S. Death § 53(a) (1966). The problem in the instant case is that there is no self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C.

Literally, Section 28-01-18(4), N.D. C.C., provides a two-year statute of limitations for “an action for injuries done to the person of another, when death ensues from such injuries . . . The enactment of the Wrongful Death Act was a response to the failure of the common law to provide a remedy for wrongful death. The Wrongful Death Act compensates the survivors for losses they have sustained by reason of the wrongful killing of the deceased. Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972). This is to be distinguished from a survival action, which is a separate and distinct cause of action. The basis for an action under our wrongful death provisions is the existence of an injury to the deceased. A wrongful death action, like a survival action, is dependent upon the injuries sustained by the deceased, and ensues from the injuries which caused his death.

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Cite This Page — Counsel Stack

Bluebook (online)
292 N.W.2d 63, 1980 N.D. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheets-v-graco-inc-nd-1980.