Calvert v. Roberts Dairy Co.
| Decision Date | 05 March 1993 |
| Docket Number | No. S-90-901,S-90-901 |
| Citation | 242 Neb. 664,496 N.W.2d 491 |
| Parties | Sandra CALVERT, Appellant, v. ROBERTS DAIRY COMPANY, a Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings: Demurrer: Limitations of Actions. A petition is demurrable which shows on its face that the action is barred by a statute of limitations and no allegations tolling the statute are made.
2. Pleadings: Demurrer. A demurrer goes only to those defects which appear on the face of the petition and where the alleged defect does not appear on the face of the petition, it becomes an affirmative defense which must be raised by the party seeking the benefit of the defect.
3. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the trial court.
4. Judicial Notice: Statutes: States. Every court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States. Neb.Rev.Stat. § 25-12,101 (Reissue 1989).
5. Judicial Notice: Statutes. The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information. Neb.Rev.Stat. § 25-12-102 (Reissue 1989).
6. Judicial Notice: Pleadings: States. To require a trial court to take judicial notice of the law of another state, it must be pleaded.
7. Parties: Actions: States. Although substantive rights of parties to an action are governed by the state where the cause of action arose, procedural matters are dictated by the law of the forum.
8. Constitutional Law: Limitations of Actions: States. The Constitution of the United States does not bar application of the forum state's statute of limitations to claims that in their substance are and must be governed by the law of a different state.
9. Statutes. We are required to give effect, if possible, to all the several parts of a statute, and no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.
10. Statutes: Claims: Limitations of Actions: States. Nebraska's borrowing statute, Neb.Rev.Stat. § 25-215 (Reissue 1989), permits the barring of a claim by the statute of limitations of a foreign state only in the event the claim would have been barred by the applicable Nebraska statute of limitations if the defendant had been a resident of this state for the period therein prescribed by the applicable Nebraska statute of limitations.
Jacob J. Peters, of Peters Law Firm, P.C., Council Bluffs, and Jack A. Dike, of Headley & Dike Law Office, Omaha, for appellant.
Betty L. Egan, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellee.
The plaintiff, Sandra Calvert, appeals the order of the district court sustaining the defendant's demurrer and dismissing the plaintiff's petition with prejudice. We reverse and remand for further proceedings.
The petition, filed on May 15, 1990, alleges that plaintiff was at all times a resident of the State of Iowa and the defendant was a Nebraska corporation. The petition further alleges damages arising out of an accident as a result of the negligence of the defendant occurring in Council Bluffs, Iowa. Defendant demurred "pursuant to Neb.Rev.Stat. § 25-806 for the reason that on the face of Plaintiff's Petition, the cause of action is barred by the applicable Statute of Limitations and that there are no special circumstances which have tolled the Statute."
Neb.Rev.Stat. § 25-806 (Reissue 1989) provides in pertinent part:
The defendant may demur to the petition only when it appears on its face (1) that the court has no jurisdiction of the person of the defendant or the subject of the action; ... or (6) that the petition does not state facts sufficient to constitute a cause of action.
A petition is demurrable which shows on its face that the action is barred by a statute of limitations and no allegations tolling the statute are made. Bend v. Marsh, 145 Neb. 780, 18 N.W.2d 106 (1945); Pohle v. Nelson, 108 Neb. 220, 187 N.W. 772 (1922). A demurrer goes only to those defects which appear on the face of the petition and where the alleged defect does not appear on the face of the petition, it becomes an affirmative defense which must be raised by the party seeking the benefit of the defect. Smick v. Langvardt, 216 Neb. 778, 345 N.W.2d 830 (1984).
Neb.Rev.Stat. § 25-207 (Reissue 1989), provides that an action for an injury to the rights of the plaintiff not arising out of contract may only be brought within 4 years. The petition in this case was filed within 4 years of the accident and therefore on the face of the petition the action is not barred by the applicable statute of limitations. For that reason alone the action of the district court should be reversed and the cause remanded for further proceedings.
However, even though not pled, there is a finding in the order of the trial court and statements in the briefs of the parties that Iowa has a 2-year statute of limitations which the district court found applicable and which caused this action to be time barred. In Minneapolis Harvester Works v. Smith, 36 Neb. 616, 54 N.W. 973 (1893), however, this court noted:
[W]hen a party relies upon a statute of another state to make out his cause of action or defense, he must plead the statute upon which he depends in the same manner he would any other fact.... While it is the better, and safer, practice in pleading the statute of another state to set out a copy thereof in the pleading, yet, we think, it is sufficient to allege the substance of the statute desired.
Id., 36 Neb. at 619-20, 54 N.W. at 974.
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the trial court. First Nat. Bank v. Heiden, 241 Neb. 893, 491 N.W.2d 699 (1992); May Broadcasting Co. v. Boehm, 241 Neb. 660, 490 N.W.2d 203 (1992).
It is provided by Neb.Rev.Stat. § 25-12,101 (Reissue 1989) that "[E]very court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States." Section 25-12,102 states that "[T]he court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information." However, this court has said that in order for a litigant to invoke the Uniform Judicial Notice of Foreign Law Act, § 25-12,101 et seq., he or she must give reasonable notice in pleadings or otherwise of the intention so to do, Smith v. Brooks, 154 Neb. 93, 47 N.W.2d 389 (1951), and to require a trial court to take judicial notice of the law of another state, it must be pleaded, Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951).
Nevertheless, in the trial court's order, and as admitted by plaintiff in her brief, Iowa apparently does have a 2-year statute of limitation as to actions involving torts. The court further found that Nebraska's "borrowing" statute, Neb.Rev.Stat. § 25-215 (Reissue 1989), would require the application of Iowa's statute of limitations. The case was tried on that theory in the trial court, and was briefed and argued in this Court on that theory. Furthermore, if we were to remand the case to the district court for the reason that the defect did not appear on the face of the petition, it is likely that the case would be retried and the issue of the Iowa statute of limitations would properly be raised, and we again would be confronted with the same issue to decide. Therefore, in the interest of judicial economy we proceed to decide the pivotal question raised here.
Preliminarily we should state that although substantive rights of parties to an action are governed by the state where the cause of action arose, procedural matters are dictated by the law of the forum. Whitney v. Penrod, 149 Neb. 636, 32 N.W.2d 131 (1948).
In Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988), the Court stated: "This Court has long and repeatedly held that the Constitution does not bar application of the forum State's statute of limitations to claims that in their substance are and must be governed by the law of a different State." Id. at 722, 108 S.Ct. at 2121.
The proposition that a forum always applies its own statute of limitations has been modified in many jurisdictions by the enactment of borrowing statutes. A borrowing statute directs a forum court to apply the statute of limitations of a foreign jurisdiction.
Nebraska's borrowing statute is found at Neb.Rev.Stat. § 25-215 (Reissue 1989). It provides as follows:
All actions and causes of action which are barred by laws of any other state, territory or country shall be deemed barred in this state; but no action shall be barred by laws of any other state, territory or country unless the same would have been barred by the provisions of this chapter had the defendant been a resident of this state for the period herein...
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