Hudson Motor Car Co. v. Hertz

• Decision Date: 25 June 1941
• Docket Number: No. 8913,8914.,8913
• Citation: 121 F.2d 326
• Parties: HUDSON MOTOR CAR CO. et al. v. HERTZ.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F.2d 326 (1941)

HUDSON MOTOR CAR CO. et al. v. HERTZ.

Nos. 8913, 8914.

Circuit Court of Appeals, Sixth Circuit.

June 25, 1941.

I. E. Kerr, of Detroit, Mich. (Kerr, Lacey & Scroggie, of Detroit, Mich., on the brief), for appellants.

Harold H. Emmons and Harold H. Emmons, Jr., both of Detroit, Mich., and Robert H. McNeill, of Washington, D. C., for appellee.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

We adopt the following accurate and comprehensive statement of the case made by our brother, HAMILTON, who dissents from the conclusion reached by the majority:

These are appeals by appellants, the Hudson Motor Car Company, and Motor Wheel Corporation from a joint judgment of $9,522.55 on the verdict of a jury in separate actions instituted against each of them by the appellee, Gustav C. Hertz, administrator cum testamento annexo of the estate of Lois Crane Hertz, deceased.

On April 13, 1938, appellee's deceased was severely injured in an automobile accident while riding in a car manufactured by appellants, from which injuries she died April 18, 1938.

On November 23, 1938, appellee, Gustav C. Hertz, duly qualified in Virginia as administrator, c. t. a., of the decedent's estate and on April 26, 1939, brought these actions in that capacity. On the opening of the trial, appellee petitioned the court to be made a party plaintiff, as special ancillary administrator of the estate and attached to the petition a certified copy of letters of special administration issued to him by the Probate Court for Wayne County, Michigan, on June 3, 1940. Appellants objected on the ground that under Section 27.3178 of the Michigan Statutes Annotated, the appointment was void and of no effect, but the court permitted the filing. Appellants then asked for a judgment on the pleadings for the reason that the complaint did not state a cause of action and pointed out to the court that there was at that time no action for wrongful death in Virginia at common law and that appellee had plead no statute of that state authorizing the recovery. Appellee made motion for leave to file an amendment to his complaint which was granted, and he set forth Sections 5786, 5787 and 5809 of the Virginia Statutes upon which he relied and which are in the margin.¹

Appellant, Motor Wheel Corporation, filed answer and alleged that the pleading of these sections was improper and erroneous because the period of limitation contained in Sections 5786 and 5787 had at that time expired. The same objection was raised by appellant, Hudson Motor Car Company, at the close of appellee's case.

Both appellants then moved to dismiss the actions because barred by the limitations in the two sections of the Virginia Code above cited, which motions were denied. At the close of appellee's testimony, motions for a directed verdict were made by appellants on the ground the actions were barred by the Statute of Limitations and because the court allowed the amendment to appellee's complaint after the expiration of the statutory period, which motions were again denied. These motions were renewed at the conclusion of all the testimony and again denied.

After the verdict of the jury and the entry of judgment, each appellant filed a motion to set aside the verdict and judgment and for entry of judgment in its favor or, in the alternative, for a new trial, based upon the same reasons as in the previous motions which were again denied, hence these appeals which were consolidated for hearing in this court.

Appellants rely upon three points for reversal:

1. The alleged error of the court in failing to hold that the action was barred by limitation contained in Sections 5786 and 5787 Code of Virginia of 1936;

2. The alleged error of the court in permitting appellee to amend its complaint by pleading these sections because the limitation contained therein had expired at the time of the tendered pleading; and

3. The alleged error of the court in failing and refusing to rule as a matter of law that appellee was not entitled to maintain these actions because not a proper party-plaintiff either as administrator, c. t. a., of the estate of the deceased by appointment of the Probate Court of Fairfax County, Virginia, or as special administrator of her estate by appointment of the Probate Court for Wayne County, Michigan.

The legislative history of the Death by Wrongful Act Statute in Virginia as concerns limitation is pertinent to the inquiry. This statute was originally enacted by the General Assembly of Virginia on January 14, 1871, Acts Va. 1870-71, c. 29, and consisted of four sections. Section 2 provided that every action must be instituted thereunder in the name of the personal representative of the deceased and within twelve calendar months after death. This Act was incorporated in the State Code of 1887 and by the codifier was divided into statutory sections, i. e., 2902, 2903 and 2904. Section 2903 provided for a limitation of twelve months after death. On March 7, 1904, Acts 1904, c. 64, the General Assembly passed an Act entitled "An Act to amend and re-enact sections 2903 and 2904 of the Code of Virginia of 1887." Section 2903 retained the identical limitation clause. Later the Code was recodified in 1919 and Section 2902 became Section 5786 and Section 2903 became Section 5787.

On February 10, 1920, Acts 1920, c. 25, the General Assembly passed an Act "to amend and re-enact section 5787 of the Code of Virginia" changing the period of limitation to read "one year after said person's death" instead of "twelve months after said party's death" as theretofore contained in Section 2903. No mention was made at this time of Section 5786.

On March 25, 1926, Acts 1926, c. 507, the General Assembly passed an Act entitled "to amend and re-enact section 5786 of the Code of Virginia," which amendment provided in part: "Every action under this section shall be brought within one year next after the right to bring same shall have accrued, notwithstanding the provisions of section fifty-eight hundred and eighteen."

Section 5786 was Section 2902 of the earlier codification. Section 5818 was a general statute of limitations of Virginia.

As the 1936 codification now appears under Section 5786, the period of limitation begins when the right to bring the action shall have accrued and under Section 5787 it begins at the date of death, Section 5786 being the latest section amended.

(1) We are in accord with the foregoing statement of the case by our colleague, Judge HAMILTON, but disagree with the reasoning of his dissenting opinion to the effect that the actions should be barred by limitation, because not commenced within one year after the death of appellee's decedent.

On the contrary, we think these actions for death by wrongful act were brought seasonably under the appropriate Virginia Statute, Code Section 5786, which contains the applicable limitation, and are not affected or barred by the limitation of Section 5787.

(2) Section 5786 is the section of the Code of Virginia which provides redress in the form of an action for damages for death by wrongful act, abrogating the harsh common law rule, actio personalis moritur cum persona. It is Virginia's version of Lord Campbell's Act.

On March 25, 1926, the Virginia Legislature amended this section, by adding, inter alia, these plain words: "Every action under this section shall be brought within one year next after the right to bring same shall have accrued, notwithstanding the provisions of section fifty-eight hundred and eighteen." This provision of law is clearly inconsistent and irreconcilable with the language of the first clause of Code Section 5787, limiting the time for bringing an action for death by wrongful act to within one year after death of the injured person.

It is true that repeals by implication are not favored in law; but it is also true that when confronted with irreconcilable inconsistency in the statutes of a state, the courts look to the latest expression of the legislature, to ascertain the legislative intent. Ascertainment of the legislative intent is the primary purpose of all statutory construction. Orndoff v. Turman, 2 Leigh 200, 29 Va. 200, 21 Am.Dec. 608; Simpson v. Simpson, 162 Va. 621, 175 S.E. 320, 94 A.L.R. 909.

In Richmond v. Sutherland, 114 Va. 688, 77 S.E. 470, the doctrine is stated that when the legislature amends a statute by adding a new provision, the presumption is that it was intended to make some change in existing law.

In Western Assurance Co. v. Stone, 145 Va. 776, 134 S.E. 710, 713, 48 A.L.R. 1009, it was said: "Whether or not a later act shall be construed to repeal an earlier one on the same subject is a question of legislative intent to be gathered from a comparison of the two acts, the language used in the later act and the facts and circumstances surrounding its enactment. General rules of interpretation are helpful, but no hard and fast rule can be laid down on the subject."

Plain legislative intent should never be thwarted by overstressing the sometimes useful canon of construction that repeals by implication are not favored in law.

As far back as 1835, the Virginia Court said, in Winn, Adm'x, v. Jones, 6 Leigh 74, 33 Va. 74: "If there be any inconsistency between them Session Laws, this last must prevail; for in the construction of the laws re-enacted at the revisal, we must, in case of irreconcilable difference, look to the dates of the original statutes, in order to ascertain the last declaration of the legislative will."

The same idea was amplified in Gaines' Adm'r v. Marye, 94 Va. 225, 227, 26 S.E. 511, where the court said: "The Code is a revision of the statute law of the state as it existed at the time of the revision. It was adopted by the legislature as one act, and all its parts took effect equally and simultaneously. Notwithstanding the fact that the Code is a revision of the statute law, if its various sections are...