Herman v. Magnuson

Decision Date22 March 1979
Docket NumberNo. 9482,9482
Citation277 N.W.2d 445
PartiesPaul J. HERMAN, Plaintiff and Appellant, v. Terrance MAGNUSON and the City of Grand Forks, a Municipality, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

Leland F. Hagen, of Ohnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, for plaintiff and appellant.

F. John Marshall, of Letnes, Marshall & Hunter, Grand Forks, for defendant and appellee Terrance Magnuson.

James L. Lamb, of Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Grand Forks, for defendant and appellee City of Grand Forks.


Paul J. Herman ("Herman") brought a personal-injury action against Terrance Magnuson ("Terrance") and the City of Grand Forks ("Grand Forks") to recover damages for injuries sustained in a motor-vehicle accident. He appeals from the district court's judgment on the pleadings in favor of Grand Forks and summary judgment in favor of Terrance. We affirm the judgments of the district court.

In the early morning of November 21, 1975, a four-wheel-drive pickup truck driven by Eric Magnuson ("Eric"), Terrance's son, crossed the centerline on a skyway in Grand Forks and collided with an oncoming Toyota pickup truck in which Herman was a passenger. As a result of the collision, Herman suffered injuries that rendered him a paraplegic.

Herman based his action against Terrance on the "family car" doctrine, alleging that Terrance "owned, maintained or controlled" the pickup truck that Eric was driving when the collision occurred, that Terrance "furnished . . . (the truck) for the use, pleasure and business of himself and his household," and that "Eric Magnuson was a member of Terrance Magnuson's family and household, . . . " Herman based his action against Grand Forks on the City's alleged negligence "in the maintenance, design, approval and construction" of the skyway on which the collision took place.

After the parties conducted extensive discovery, Grand Forks filed a motion to dismiss the action, or, in the alternative, for judgment on the pleadings in its favor, contending that Herman failed to comply with the notice requirements of Section 40-42-02, N.D.C.C., and that Chapter 295, S.L.1975, exempted it from liability arising out of negligence in the construction and design of a skyway. The district court found that Herman did not comply with the notice requirements of Section 40-42-02, N.D.C.C., and therefore granted judgment on the pleadings in favor of Grand Forks.

Thereafter, Terrance moved to dismiss Herman's action against him for failure to state a claim upon which relief could be granted. Terrance argued that the "family car" doctrine was inapplicable because he did not "own, maintain or control the Ford pickup" truck that Eric was driving in the collision, because Eric was not living in his household and because Eric, who held legal title to the truck, did not operate it with Terrance's express or implied permission. Treating the matter as a motion for summary judgment pursuant to Rule 56(c), North Dakota Rules of Civil Procedure, because both parties offered material outside their pleadings (Rule 12(b), N.D.R.Civ.P.), the district court granted summary judgment in favor of Terrance, concluding in essence that Eric was not a member of Terrance's family for purposes of the "family car" doctrine.


Herman, in his appeal from the judgment on the pleadings entered by the district court in favor of Grand Forks, presents three issues:

"a. Was the 90 day notice requirement of North Dakota Century Code, Chapter 40-42 regarding actions against municipalities for defective streets and bridges impliedly repealed by the enactment of the Political Subdivision Tort Liability Act of 1975? 1

"b. If said notice requirement was impliedly repealed, are the notice provisions in the Political Subdivision Tort Liability Act of 1975 conditions precedent to suit, or merely directory? 2

"c. If the notice provisions of North Dakota Century Code, Chapter 40-42 were not thus repealed, is such notice requirement unconstitutional as a denial of equal protection, and are the notice provisions of the 1975 Act unconstitutional if found to be mandatory and not directory?"

In order to sustain his first issue, appellant must overcome this court's resistance to repeals of statutes by implication. See, e. g., Rodgers v. Freborg, 240 N.W.2d 63 (N.D.1976). However, the fundamental test in all cases pertaining to repeal by implication is the intent of the Legislature. See, e. g., State v. Hagge, 224 N.W.2d 560 (N.D.1974).

Chapter 40-42, N.D.C.C., was a special Act concerned only with claims against cities for injuries on the streets. Chapter 295, S.L.1975, on the other hand, was a general Act concerned with tort liability of all political subdivisions, including cities.

Section 1-02-07, N.D.C.C., provides:

"Whenever a general provision in a statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest legislative intent that such general provision shall prevail." 3

A reading of Herman's complaint against Grand Forks convinces us that it comes within the purview of Chapter 40-42, N.D.C.C., because that chapter applied to any claim against a city

" . . . for damages or injuries alleged to have arisen from the defective, unsafe, dangerous, or obstructed condition of any street, crosswalk, sidewalk, culvert, or bridge of the municipality or from the negligence of the municipal authorities in respect to any such street, sidewalk, crosswalk, culvert, or bridge, . . . " Sec. 40-42-01, N.D.C.C.

Herman points out that the definition of the term "claim" in Chapter 295, Section 1, S.L.1975, would include the type of action commenced by him in this lawsuit. 4 He also argues that the definition of the term "political subdivision" as used in that section would include Grand Forks. 5 Finally, Herman submits that because Chapter 295, Section 3, S.L.1975, excludes claims for damage caused by the use or operation of motor vehicles or aircraft by a political subdivision from the terms of the Act, that exclusion is evidence of the Legislature's intent that all other claims should be covered thereunder, thus impliedly repealing the provisions of Chapter 40-42, N.D.C.C. 6

Herman does not ask us to construe Chapter 40-42, N.D.C.C., and Chapter 295, S.L.1975, together; rather, he asks us to conclude that the latter enactment impliedly repealed the former. Such an argument necessarily prompts a conclusion that the two enactments are irreconcilable. Yet, if they are irreconcilable, his argument would contravene the provisions of Section 1-02-07, N.D.C.C., unless we find that it is the "manifest legislative intent that such general provision shall prevail." 7

Grand Forks argues that because the 1975 legislation did not expressly repeal Sections 40-42-01, 40-42-02, and 40-42-03, N.D.C.C., and because these provisions were, in fact, expressly repealed by the Legislature in 1977, 8 the Act must have been in existence until July 1, 1977, when the repeal became effective. We note, however, that Chapter 303, Section 16, S.L.1977, provides:

"If a claim against a municipality was filed in the office of the city auditor in accordance with section 40-42-01 after April 8, 1975, and prior to July 1, 1977, and the cause of action against the municipality was dismissed on the basis of failure to file the claim with the county auditor in accordance with section 4 of chapter 295 of the 1975 Session Laws of North Dakota, such claim is preserved and may be filed in the office of the city auditor within ninety days after the effective date of this Act. Notwithstanding sections 40-42-02 and 40-42-03, the time limits for rejecting a claim and for bringing an action shall be determined on the basis of the date a claim was filed as authorized by this section."

The action by the 1977 Legislature is not indicative of the intent of the 1975 Legislature. 9 See, e. g., St. Vincent's Nursing Home v. Department of Labor, 169 N.W.2d 456 (N.D.1969).

We are impressed by the fact that Chapter 295, S.L.1975, was an obvious legislative response to the invitation issued by this court in Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974), wherein this court held that the political subdivisions of this State were not immune from tort liability, but delayed the effect of its decision, except with respect to the parties involved therein, 10 until fifteen days after adjournment of the 1975 Legislative Assembly. Thus Chapter 295, Section 13, S.L.1975, sets forth the legislative intent of the enactment as follows:

"It is the intent of the legislature that this Act is to provide the political subdivisions of this state with temporary protection only until July 1, 1977. This Act is deemed to be in the best interest of the people of this state and is an exercise of the police powers. This Act is a temporary response to the recent judicial decision which held that the doctrine of governmental immunity from tort liability as it applies to political subdivisions should not be sustained in this state. It is the policy of the legislature to encourage political subdivisions to continue to maintain present liability insurance coverage pending a legislative council study of governmental immunity and to encourage political subdivisions to maintain insurance coverage for motor vehicles and aircraft." 11 (Emphasis added.)

The legislative intent in enacting the 1975 law is clear. The Legislature was responding to this court's decision in Kitto; it was not attempting to repeal Chapter 40-42, N.D.C.C. The declaration of legislative intent...

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