Bryant v. Dakota County
| Decision Date | 17 February 1898 |
| Docket Number | 7739 |
| Citation | 74 N.W. 313,53 Neb. 755 |
| Parties | OSCAR BRYANT v. DAKOTA COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dakota county. Tried below before NORRIS, J. Affirmed.
AFFIRMED.
Daley & Jay and Jay & Beck, for plaintiff in error.
R. E Evans, contra.
This action was instituted in the court below against Dakota county to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the defective condition of a certain public highway which it was the duty of defendant to keep in repair. A demurrer to the petition was sustained, and the cause dismissed; and to obtain a reversal of this ruling is the purpose of this proceeding.
The record discloses that the suit was commenced more than thirty days after the alleged injury and damages occurred, which fact, the defendant insists, is sufficient to defeat a recovery. This contention is based upon section 4, chapter 7, Laws 1889 (Compiled Statutes 1897, ch. 78, sec. 117), which reads as follows: "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, and if damages accrue in consequence of the insufficiency or want of repair of a road or bridge, erected and maintained by two or more counties, the action can be brought against all of the counties liable for the repairs of the same, and damages and costs shall be paid by the counties in proportion as they are liable for the repairs; Provided, however, That such action is commenced within thirty (30) days of the time of said injury or damage occurring." It is obvious that, if the proviso clause of said section is valid legislation, the demurrer to the petition was properly sustained, since this suit was not commenced within the designated period of thirty days. It is argued by counsel for plaintiff that said proviso contravenes section 11, article 3, of the constitution, which declares: It is suggested that the said act of 1889 is inimical to the above provision for the reason it embraces two distinct subjects of legislation, and that one of them alone is expressed in the title. The act is designated as "An act relating to highways and bridges and liabilities of counties for not keeping the same in repair." Prior to the adoption of this piece of legislation there existed in this state no right of action against a county for the recovery of damages resulting from defective public highways or bridges (Woods v. Colfax County, 10 Neb. 552, 7 N.W. 269), while by the law under consideration the authority to bring such a suit was granted (Hollingsworth v. Saunders County, 36 Neb. 141, 54 N.W. 79; Raasch v. Dodge County, 43 Neb. 508, 61 N.W. 725). It is conceded that the purpose to confer such right of action is with sufficient clearness expressed in the title given to the law by the legislature, but it is insisted that such title is not broad enough to include the provision in the body of the act, limiting the period within which the action should be commenced. We are unable to yield assent to the proposition. The legislature had the undoubted right to give the remedy in question, or withhold as it saw proper. So, too, the law-making body had the power in conferring the remedy to attach as a condition that the action should be instituted within a specified length of time; and the remedy was given upon the express condition that it should be invoked within thirty days after the sustaining of the injury or damages. Such limitation was not an independent subject of legislation, but was germane to the principal object and purpose of the law, and was included in the title to the act. As was said in the opinion in State v. Tibbets, 52 Neb. 228, 71 N.W. 990, ...
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