Gengo v. Mardis
| Decision Date | 01 February 1919 |
| Docket Number | 20128 |
| Citation | 170 N.W. 841,103 Neb. 164 |
| Parties | PAUL GENGO, ADMINISTRATOR, APPELLANT, v. JOHN C. MARDIS ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
Gurley & Fitch, for appellant.
Brogan & Ellick, contra.
ALDRICH J. ROSE, J., took no part in the decision. SEDGWICK, J dissenting.
On the 15th day of November, 1911, one John Butera came to his death at Omaha, while employed as a workman on what is known as the Flatiron Building. Afterwards one Paul Gengo became administrator de bonus non of the estate of the said John Butera, deceased, and as such administrator, on December 5, 1913, filed an amended petition against the said John C. Mardis, doing business as the J. C. Mardis Company, charging them with the wrongful death of the decedent. This action was commenced under and by virtue of the provisions of section 1429, art. VIII, ch. 17, Rev. St. 1913: "Actions by or against executors." A demurrer was filed to this petition, and after submission and argument was sustained, the decision being that the petition did not state a cause of action, as more than two years had elapsed from the accruing of said cause to the beginning of the action. The purpose of said section 1429, commonly known as Lord Campbell's Act, was to prescribe limitations and a remedy for a cause of action which did not exist at common law, for at common law the cause of action died with the death of the claimant. This statute was enacted to provide a remedy and to entitle representatives of the deceased person to begin a cause of action because of wrongful death of the deceased, and that it should be commenced by an administrator, duly qualifying, and acting; so that said injured relative might obtain a pecuniary benefit resulting from said wrongful injury, or death.
It is also provided in said act that every such action shall be commenced within two years after the death of said person. This provision is contrary to the general statutory provision with respect to limitations, for that section of said general statute provides that when the party wanted places himself without the jurisdiction of the court, absconds, or stays in hiding so that service cannot be had upon him, then in that case the statute shall cease to operate; while in the case at bar the section of the statute under which this action is brought has its provisions checked and hemmed in as hereinbefore stated, and every action brought under it must be commenced within two years. Then the proposition is: As this action was not commenced for more than two years, does the petition state a cause of action? We are met with the proposition that we should construe the statute of limitations as provided for in section 1429, together with section 7577, Rev. St. 1913, and the toll for the time which defendant stayed away from the jurisdiction of the court should be allowed, and, if this was done, then the petition states a cause of action. We are deciding the proposition and construing section 1429 for the purpose of ascertaining whether the limitations provided in said section should be construed so as to give it effect, or whether it should be construed so as to modify and limit its provisions so as to bring it under the general statutes of limitations in section 7577. While it is true that section 7577 provides that the statute of limitations will not run during the time the defendant is absent from the state, absconds, or keeps himself from the jurisdiction of the court, it is also true that in square contradiction to this and against it is the section of the statute of limitations provided in section 1429. The question is: Which shall prevail? This is an important question, because it contains a proposition that is decisive of this case.
It is our opinion that as section 1429 is a mere paragraph that comprises an entire act beginning with 1420, and was made with reference to this principal act and independent of any other, it was made to control and provide absolutely a time within which an action shall be commenced. If it were not so, then it would have been very easy for the legislature to have the same saving clause that is found under section 7577; but inasmuch as it does not contain any exception, or any such provision, and no saving clause whatever, it is evident that it means just what it says; and, if it does, then the demurrer in this case was rightly sustained, and the action properly dismissed. If there was any saving clause provided for in this section 1429, why was it not placed there? If it intended to provide a condition which modifies and stops the statute of limitations, then why did it not say so? The answer is: It was never intended to be any other way than the way that we find it. This statute is not alone peculiar to Nebraska in this provision, but is a provision that has been enacted in many other states of the Union. Lord Campbell's Act is in force to-day, and has been for many years in the states of New York, Arkansas and Kansas, and we have interpretations given by the supreme courts of each of these states with reference to the particular matter in hand. See Kavanagh v. Folsom, 181 F. 401. Also it may be stated that both by principle and analogy the legislature meant to put in this statute the limitation which it did, and which has been interpreted as above stated by the courts. Whenever the legislature makes a law to meet a situation not met by the common law, the legislature has the inherent right to provide whatever it may deem proper and essential to meet a particular situation not heretofore met. For instance, the Nebraska legislature has enacted statutes fixing the limitation thereto different from the general statutes of limitations. For instance, the common law did not provide a remedy for one receiving an injury while traveling over a county bridge, and to meet this demand the legislature passed an act, section 2995, Rev. St. 1913 (Laws 1889, ch. 7), for the purpose of making counties liable for damage to person or property. Section 2995 reads in part: "Provided, however, that such action is commenced within thirty days of the time of the injury or damage occurring." Then here in this statute is another statute with reference to the county's liability in an action growing out of defective bridges that makes a statute of limitations peculiar to and especially provides for the very act itself. Then when the legislature passed Lord Campbell's Act, and gave it a statute of limitations peculiar to itself, it simply was doing what it had heretofore done, and so has been and is recognized as peculiar to the inherent power of the legislature itself. This act, with this special provision of the statute of 30 days' limitation, has been held by this court to be constitutional. If then it is constitutional to enact a statute of limitation limiting liability to within 30 days, why is it not constitutional and proper to pass a statute limiting an act to 24 months? The same authority or body of lawmakers that enacted section 2995 enacted section 1429, and each lawmaking body operated and worked and passed this law under the same Constitution, and if, as has been held, it was constitutional to do the one, under the same, or similar circumstances, it would be constitutional to do the other under a like situation. In the case of the City of South Omaha v. McGavock, 72 Neb. 382, 100 N.W. 805, it is held:
"Where a statute grants a new remedy, and at the same time places a limitation of time within which the person complaining must act, the limitation is a limitation of the right as well as of the remedy, and, in the absence of qualifying provisions or saving clauses, the party seeking to avail himself of the remedy must bring himself strictly within the limitations."
Now by analogy this case is absolutely pat, and on the proposition that the legislature is making a special act has a right to attach to this provision a statute of limitation that will provide for a different time than the time provided for in the general statute, this court has sustained that proposition and the constitutionality of such law. Then the plaintiff in this action, it follows, is bound in seeking his remedy to bring himself strictly within the limitations provided in Lord Campbell's Act. See Swaney v. Gage County, 64 Neb. 627, 90 N.W. 542. In the case of Ellis v. City of Kearney, 80 Neb. 51, 113 N.W. 803, we have by analogy a case absolutely in point. We have in that case the situation where plaintiff was physically incapacitated to perform a duty enjoined by law; that is, in bringing the action within a certain time. This court held that the law does not excuse nonperformance, and that such a situation is not available to extend the time, or offer an opportunity to fix statutory liability upon another, and in support of this proposition cites Schmidt v. City of Fremont, 70 Neb. 577, 97 N.W. 830. In that case, which by analogy is the precise situation we have here, we find this court following the same and approving it. In Ellis v. City of Kearney, supra, the court say:
Where is there a scintilla of an excuse to read something into Lord Campbell's Act that was not intended by the lawmakers nor is there directly, or indirectly, any intention to do the thing which they did not do. To do so would be to nullify the statute and place a construction and meaning upon it that was never intended by the legislature. In Madden v. Lancaster caster Coun...
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