Gallegos v. Atchison

• Decision Date: 03 April 1923
• Docket Number: No. 2644.,2644.
• Court: New Mexico Supreme Court
• Parties: GALLEGOSv.ATCHISON, T. & S. F. RY. CO.

28 N.M. 472

214 P. 579

GALLEGOS

v.ATCHISON, T. & S. F. RY. CO.

No. 2644.

Supreme Court of New Mexico.

April 3, 1923.

Syllabus by the Court.

At common law, when an act is repealed which repealed a former act, such former act is thereby revived, and again becomes effective, without formal words to that effect.

This rule does not apply where the new legislative enactment, by which the repealing statute is repealed, consists of a revision or a substitute for the original act. In such cases it is manifest that the Legislature did not intend to revive the original act, but to legislate anew upon the subject.

Under this rule, sections 1 and 9, c. 61, Laws 1882, the latter of which was repealed by section 7, c. 2, Laws 1887, which, in turn, was repealed by section 4, c. 75, Laws 1889, were revived, and again became effective.

Under the terms of the statute so revived, suits for the recovery of damages for the death of a person which is caused by the negligence of a railway company must be commenced within one year from and after the cause of action shall have accrued.

Statutes are presumed to act prospectively only, and they will not be given retroactive or retrospective effect unless such an intention on the part of the Legislature is clearly apparent, and cannot be otherwise satisfied.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by Pablo Gallegos, surviving minor child of Pablo Gallegos, deceased, by his guardian ad litem, Felix Baca, against the Atchison, Topeka, & Santa Fé Railway Company and another. From a judgment for the named defendant, plaintiff appeals. Affirmed.

Statutes are presumably intended to operate prospectively, and words should not have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them or the Legislature's intention cannot be otherwise satisfied.

H. B. Jamison, of Albuquerque, for appellant.

W. C. Reid, G. S. Downer, and E. C. Iden, all of Albuquerque, for appellant.

BRATTON, J.

This suit was instituted by Pablo Gallegos, a minor, acting by and through his next friend, Felix Baca, against the Atchison, Topeka & Santa Fé Railway Company, a corporation, and Walker D. Hines, as Director General of Railroads under the government supervision thereof. The object of the suit is to recover damages in the sum of $5,000, under the terms of section 1820, Code 1915, for the wrongful death of his father, which he alleged to be due to the negligence of the appellee railway company.

The appellee railway company interposed a demurrer, which was overruled. The said Walker D. Hines interposed a motion to dismiss the cause in so far as he was concerned, which was sustained, and no complaint with regard to such action is urged. After issues of fact had been joined between the appellant and the appellee, a jury was impaneled to try the cause, and, after the attorney for appellant had concluded his opening statement, which merely outlined the facts charged in the complaint, the appellee moved the court to direct the jury to return a verdict in its favor because the cause of action pleaded in the complaint and outlined in such opening statement had become and was barred by the statute of limitations. This motion was sustained, and a directed verdict thereon returned by the jury, upon which judgment was accordingly rendered.

The complaint was filed in the trial court on March 28, 1919, in which it was charged that the death of appellant's father, which was so wrongfully and negligently caused, occurred on October 1, 1914, which was more than four years prior to the filing of such complaint, and the sole question for our determination is whether or not the cause of action so pleaded was barred by the statute of limitations. A brief review of the legislation concerning the question involved may be necessary to an understanding of the real issue.

Chapter 61, Laws 1882, fixed the liability of railway companies, those operating stagecoaches and other public conveyances which, through negligence, unskillfulness, or criminal intent caused or occasioned the death of any person. The pertinent parts of such chapter are sections 1 and 9, which are as follows:

“Section 1. Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver, or any stagecoach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stagecoach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stagecoach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued and recovered; first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency.”

“Section 9. Every action instituted by virtue of the provisions of this act must be brought within one year after the cause of action shall have accrued, or after this act shall go into effect.”

The former sections, with some additions thereto, were carried forward into the Compiled Laws of 1884 as section 2308; and the latter without modification was incorporated in such Compiled Laws as section 2316 thereof. The latter was expressly repealed by section 7, c. 2, Laws 1887. This chapter is entitled “An act for the protection of live stock against railroads in the territory of New Mexico, and for other purposes,” and it appears to have been approved on February 24, 1887. Section 7 thereof provides:

“Sections 2315 and 2316 of the Compiled Laws of New Mexico, 1884, are hereby repealed. This act shall take effect and be in full force from and after its passage.

Approved February 24, 1887.”

At its next succeeding session after the passage of the act last referred to, the territorial Legislative Assembly enacted a law with regard to railway companies fencing their rights of way, their liability for death or injury inflicted upon live stock, and the procedure to be followed in the collection of damages arising from such death or injury. This is chapter 75, Laws of 1889. It has nothing to do, and does not purport to deal, with the liability of such railway companies for death or injury of persons caused by the negligence of such company, nor the time within which suits for damages on account thereof shall be begun. By section 4 of said chapter, the act of 1887, which repealed section 9 of chapter 61, Laws 1882, supra, was expressly repealed. Said section is in the following language:

“An act entitled ‘an act for the protection of live stock against railroads in the territory of New Mexico, and for other purposes,’ approved February 24th, 1887, is hereby repealed.”

[1] From the foregoing it is apparent that the question before us is whether or not the repeal of the act of 1887, which repealed the act of 1882, under the doctrine of implied revivor, revived the former law, thereby making it again in force and controlling with regard to the time within which suits for the recovery of damages for the death...