Swift v. Sarpy County

167 N.W. 458, 102 Neb. 378, 1918 Neb. LEXIS 67

• Court: Nebraska Supreme Court
• Decided: April 12, 1918
• Docket: No. 20205
• Status: Published

Opinions

Sedgwick, J.

The plaintiff and his wife, Mary Swift, and four other persons, were driving in an automobile along a highway in Sarpy county, Nebraska. This highway terminated very abruptly at the bank of the Missouri river. The surface of the road, as plaintiff alleges, continued unbroken except for marks of travel, to the point where it. suddenly ended in the river. The plaintiff further alleges that the condition was well known to the county authorities, and that there was no warning of any kind to indicate the dangerous situation. The automobile plunged into the river, and all the occupants were drowned except the plaintiff. The plaintiff, as husband of the deceased, brings this action to recover damages for the death of his wife, the said Mary Swift. The defendant county interposed a demurrer, contending that the action should have been brought in the name of the administrator, instead of the husband of deceased. The demurrer was sustained by the trial court and the action was dismissed. From that judgment the plaintiff has appealed.

1. The question depends upon the construction of the statutes. About 30 years ago our legislature enacted a statute making counties liable for damáge caused, by its negligence in repairing highways or bridges-: “If special damage happens to any person, his team, carriage or other property by means of insufficiency, or want of repairs of. a highway or bridge, which the county or counties are liable to keep in repair, .the person sustaining the damage may recover in a case against the county.” Rev. St. 1913, sec. 2995. In such case the damages are of two kinds, general and special. General damages that the public suffers by reason of the irnperfect highways, loss of time in traveling over them, and additional expense connected with it are not recoverable. No damages are recoverable that are general and are sustained by the public in general. All other damages are special damages, and if they happen to any person — that is, if any person suffers, any damage that is peculiar to him, and not the same as the public in general suffers — he may recover it against the county. Before this statute was enacted it was uniformly held that the county was not liable in the absence of statute, but after the statute was enacted any one who suffered any damage's that were not general to the public could recover them.

2. At the old common law a person could recover' against carriers or individuals such- damages as 'he might suffer by reason of negligence, unless the damages he sustained resulted from the death of some individual. If a man was killed- and his wife • and children were robbed of their means of support there was no remedy. This anomaly of the law was remedied by special legislation in England at an early date, and afterwards was remedied in this state b.y the act of 1873, which provided: “Whenever the death of a person shall be caused by .the wrongful act, neglect, or default of any person, company or corporation, and the act, 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 the person, company or corporation “shall he liable to an action for damages.” Rev. St. 1913, sec. 1428. The legislature intended to provide for all cases where death was caused by negligence and some party was damaged thereby. If it had been suggested in the legislature to make the language as comprehensive as possible, so that it would cover all cases of damage, it is difficult to say what more general words would probably have been used than “any person, company or corporation.” There was no reason why it should not apply to all cases where "damages were caused by the death, and it is difficult to say what change would be made in order to make it more certain that that was intended. This statute provided that all such actions should be brought in the name of the personal representative of the. deceased person. Rev. St. 1913, sec. 1429. The reason of this provision is that, in case a man is killed, ordinarily tbere would be a widow and perhaps several children that would be damaged, and to bring an action in the name of each one of them would be unnecessarily multiplying lawsuits. When damage results' from the death of an individual this statute applies, and requires that an action for negligently causing such death shall be brought in the name of the administrator of the deceased individual. Seyfer v. Otoe County, 66 Neb. 566, was an action against the county, and was brought ill the name of the administrator of the estate of the deceased, and no objection was made to the bringing of the action in the name of the administrator, evidently because that question was plain and had been set at rest by other cases. The brief cites Johnson County v. Carmen, 71 Neb. 682; Lyons v. Greeley County, 95 Neb. 104; and Bethel v. Pawnee County, 95 Neb. 203.

By the express language of the statute, a county is not liable unless it is its .duty to maintain roads and.highways, so that when a county is under township organization, and that duty devolves upon the township, of course no action could be brought against the county. Any other holding would be a very technical attempt to evade the spirit and intention of the statute. Such action's must be brought in the name of the administrator of the estate of the deceased.

The demurrer to the petition was properly sustained, and the judgment of the district court is'

Affirmed.