Mosgrave v. Mcmanus

• Decision Date: 07 May 1918
• Docket Number: No. 1940.,1940.
• Parties: MOSGRAVEv.McMANUS, Superintendent of Penitentiary.
• Court: New Mexico Supreme Court

24 N.M. 227

173 P. 196

MOSGRAVE

v.McMANUS, Superintendent of Penitentiary.

No. 1940.

Supreme Court of New Mexico.

May 7, 1918.Rehearing Denied June 10, 1918.

Syllabus by the Court.

The provisions of section 3350, Code 1915, requiring an action for personal injury to be brought within three years, is not tolled by section 3353, excepting from the operation of the statute persons under legal disability.

In the case of a convict serving a term in the penitentiary at the time of the alleged personal injury, who does not bring the suit within three years thereafter, the exceptions contained in the statute, section 3353, Code 1915, as to persons under legal disability, not including persons imprisoned, such persons are not under legal disability within the meaning of the statute.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Legal Disability.]

Appeal from District Court, Santa Fé County; Abbott, Judge.

Suit by Vollie C. Mosgrave against John B. McManus, Superintendent of the State Penitentiary. Demurrers to complaint sustained and cause dismissed, and plaintiff appeals. Affirmed.

The appellant, plaintiff below, brought suit against John B. McManus, superintendent of the state penitentiary, to recover damages for alleged injuries sustained by him from a beating administered to him while he was confined as a convict. The complaint alleges that the beating occurred on the 19th day of May, 1912; that the plaintiff was continuously confined as a convict in the penitentiary from December 20, 1910, until October 26, 1915. The complaint was filed December 20, 1915. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in that the alleged injuries were inflicted more than three years before the beginning of the action, and that therefore the right of action was barred by the statute of limitations. This demurrer was sustained by the trial court, and the cause dismissed; from which judgment the plaintiff has appealed.

Roberts, J., dissenting.

In the case of a convict serving a term in the penitentiary at the time of the alleged personal injury, who does not bring the suit within three years thereafter, the exceptions contained in the statute, section 3353, Code 1915, as to persons under legal disability, not including persons imprisoned, such persons are not under legal disability within the meaning of the statute.

McFie, Edwards & McFie, of Santa Fé, for appellant.

F. W. Clancy, Atty. Gen., and F. J. Lavan, of Santa Fé, for appellee.

HANNA, C. J.

The several assignments of error raise but one question, to wit, is the statute requiring an action for damages for injury to the person to be brought within three years of the date of the injury tolled by the section of the statute excepting persons under any legal disability. By section 3350, Code 1915, it is provided that an action for an injury to the person or reputation of any person must be brought within three years. By section 3353 it is provided as follows:

“The times limited for the bringing of actions by the preceding provisions of this chapter shall, in favor of minors and persons insane or under any legal disability, be extended so that they shall have one year from and after the termination of such disability within which to commence said actions.”

It is contended by appellant that by virtue of our statutory provision, section 1354, Code 1915, the common law as recognized in the United States of America shall be the rule of practice and decision. Therefore, where there is no statute law abrogating it, the common law is in force, and, it appearing that we have no statutory definition of “legal disability,” it becomes the duty of the court to look to the common law for a definition of this term as applied to our statute. The seventh section of the Statute of James (the English statute of limitations) provided that if any person entitled to bring any of the personal actions mentioned therein should be, at the time the cause of action accrued, under the age of 21 years, feme covert, non compos mentis, imprisoned, or beyond the seas, such person shall be at liberty to bring the same action within the times limited by the statute after his disability has terminated. In Browning v. Estate of Browning, 3 N. M. 659, 9 Pac. 677, it was held that the statute of limitations of 21 James I, became the law of limitations of the territory in 1876. By chapter 5 of the Laws of 1880 the Legislature adopted the statute of limitations as to civil actions; section 3353, quoted supra, appearing as section 10 of that act. Section 3350, referred to supra, was adopted by the same act of the Legislature of 1880 as section 5, but was subsequently amended by chapter 60 of the Laws of 1909, extending the period from two to three years within which the action could be brought.

It is argued by appellant that while by the adoption of our present statute of limitations we repealed the common-law statute, yet it is evident that the Legislature in the passage of section 3353 had in mind the common-law disabilities, and that it is therefore proper to look to the English statute for a definition of what were the legal disabilities under the common law. Under the ancient common law it is true that there were three principal incidents consequent upon a conviction for felony; forfeiture of estate, corruption of the blood, and the extinction of civil rights, more or less complete, which is denominated civil death. At the common law it was also true that a felon could be sued, but could not sue. The felon's disability to appear as plaintiff was due to the forfeiture of his estate, resulting in the lack of remedial interest in the cause of action, 30 Cyc. 22. As pointed out in the same text at page 23, this doctrine of the common law that a convict had no standing as party plaintiff has been generally rejected by American courts as a rule of our common law, though it has had a partial survival in American statute law. See, also, 9 Cyc. 872. Under the English statute of limitations the following persons were excluded from the restrictions of the act: Those within the age of 21 years; feme covert; non compos mentis; imprisoned; beyond the seas. By our statute of 1880, the following persons were excluded from the restrictions of the act: Minors; insane persons; persons under any legal disability.

[1][2] A comparison of our statute on the subject of limitation of civil actions with the statute of Missouri (Rev. St. 1909, § 1879 et seq.) would lead one to believe that our Legislature closely followed the Missouri statute. While not identical, they are very similar. This conclusion was evidently reached by our territorial Supreme Court in considering another section of the same statute in the case of Lindauer Mercantile Co. v. Boyd, 11 N. M. 464, 70 Pac. 568. It therefore becomes pertinent to compare the provision in the Missouri statute with regard to exceptions made with a similar provision in the statute of New Mexico. The first and second provisions of the two statutes are substantially the same. The third provision of the Missouri statute excepts those imprisoned on any criminal charge for any time less than life. The fourth provision of the Missouri statute excepts married women. The New Mexico statute excepts those under any legal disability, and makes no reference to married women. It might be urged that our Legislature in adopting our statute without specifically excepting those imprisoned disclosed an intention to...