Casey v. American Bridge Co.

• Decision Date: 19 January 1912
• Docket Number: 17,248 - (118)
• Citation: Casey v. American Bridge Co., 116 Minn. 461, 134 N.W. 111 (Minn. 1912)
• Parties: CATHERINE CASEY v. AMERICAN BRIDGE COMPANY
• Court: Minnesota Supreme Court

134 N.W. 111

116 Minn. 461

CATHERINE CASEY v. AMERICAN BRIDGE COMPANY

Nos. 17,248 - (118)

Supreme Court of Minnesota

January 19, 1912

Action in the district court for Hennepin county by the administratrix of the estate of William Casey, deceased, to recover $10,000 for the death of her intestate.From an order, Steele, J., overruling defendant's demurrer to the amended complaint, it appealed.Affirmed.

SYLLABUS

Limitation of action under foreign code -- demurrer -- action not barred.

The plaintiff's intestate was killed in Oklahoma by the alleged negligence of the defendant, who then was and ever since has been absent from that state.Section 413 of the Oklahoma Code gives in such cases a cause of action for the benefit of the widow and children of the deceased, which must be commenced within two years; but section 21 of the same act provides that if, when a cause of action accrues against a person, he be out of the state, the period limited for its commencement shall not begin to run until he comes into the state.This action for the death of the plaintiff's husband was brought in this state, where the defendant was found, more than two years after the husband's death.Held, that the condition or limitation in section 413 is qualified by the tolling provision of section 21, that the action is not barred in Oklahoma, and may be maintained in this state.

Frank B. Kellogg, C. A. Severance, Robert E. Olds, and W. C Michaels, for appellant.

Edmund H. McVey, C. M. Bracelen, and Samuel R. Freet, for respondent.

OPINION

*T, C.J.

Appeal by the defendant from an order of the district court of the county of Hennepin overruling its general demurrer to the complaint.The question presented by the record is whether it conclusively appears upon the face of the complaint that the action is barred by the statute of limitations.

The action was commenced January 12, 1911.The here material allegations of the complaint are to the effect following:

The defendant is a corporation organized under the laws of New Jersey.The plaintiff's intestate, on March 17, 1901, was killed as a result of the negligence of the defendant in the construction of a bridge upon a public highway across a creek in the county of Kingfisher in the state of Oklahoma.SeeO'Brien v. American BridgeCo. 110

Minn. 364, 125 N.W. 1012, 32 L.R.A. (N.S.) 980, 136 Am. St. 503.The plaintiff is the widow of the deceased, and was duly appointed administratrix of his estate by the proper court of Oklahoma.The defendant, when the action accrued, was absent from Oklahoma, and ever since has been; but when the action accrued, and ever since, the summons could have been served on the defendant in Minnesota.The code of civil procedure of Oklahoma^[1] which was in force on March 17, 1901, and ever since has been, provides, with other matters, as follows (pp. 972, 974, 1064):

"Sec. 15.Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but, where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation."

"Sec. 21.If, when a cause of action accrues against a person, he be out of the territory or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the territory, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the territory, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

"Sec. 413.When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission.The action must be commenced within two years.The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased."

Whether the complaint shows on its face that the cause of action is barred by the statute of limitations depends on the construction to be given the foregoing sections of the Oklahoma Code, which are set out in the complaint.

The plaintiff claims that sections 21and413 are parts of the same act and must be construed together, and that section 21 qualifies the condition or limitation of two years contained in section 413, and therefore this action is not barred, for the reason that the defendant has been absent from the state of Oklahoma ever since the cause of action accrued.On the other hand, the defendant claims that the two sections are distinct in their purpose and effect, independent of each other, and it must be held that this action is barred.

So far as we are advised the courts of Oklahoma have not construed these sections as to their relation to each other, and we must determine the question in accordance with the settled rules for construing statutes.

It appears from the record herein that sections 21and413 are parts of one and the same act, the code of civil procedure, enacted at the same time, and that neither section was the law before the other one was.Section 21 is general in its terms, and declares that, when a cause of action accrues against a person who is out of the territory (now state), the limitation shall not begin to run until he comes into the territory.When this qualification of the limitation or condition upon bringing a cause of action was enacted, a right of action was given by the same act for the death of a person by the wrongful act or neglect of another.No cause of action is excepted from this just provision of the section, which was obviously intended to give every person having any cause of action a fair opportunity to enforce it before the doors of the court should be closed against him.Why, then, should an exception be read into section 21 by construction, excluding a cause of action for the death of a husband and father, caused by the wrongful act or neglect of another?

Counsel for defendant urge a number of alleged reasons why the tolling provision of section 21 should not apply to the cause of action given by section 413.The first one to be considered is to the effect that such cause of action manifestly belongs to the class of special cases mentioned in section 15, which provides that civil actions can only be commenced within the periods therein prescribed, but where in special cases a different limitation is prescribed by statute the action shall be governed by such statute.The meaning of this provision is entirely clear.It has no reference to section 21, but it refers to the limitation provided in special cases by other statutes, and declares that the limitation therein provided shall control.

The further contentions of the defendant are embraced in the general proposition that the requirement of section 413 that the action given thereby must be commenced within two years is a condition precedent upon the right, which is unqualified by the provisions of section 21.This proposition is ably and at great length urged in the brief of counsel, and authorities are cited in support of the correctness of the premises of the proposition.It is true that where a right of action is given by statute, which did not exist at common law, and the statute giving the right of action also fixes the time within which it may be enforced, such time limit is a condition or limitation upon the right, which will control no matter...