Natseway v. Jojola

• Decision Date: 10 December 1952
• Docket Number: No. 5542,5542
• Citation: 1952 NMSC 104,56 N.M. 793,251 P.2d 274
• Parties: NATSEWAY et al. v. JOJOLA et ux.
• Court: New Mexico Supreme Court

Page 274

251 P.2d 274

56 N.M. 793

NATSEWAY et al. v. JOJOLA et ux.

No. 5542.

Supreme Court of New Mexico.

Dec. 10, 1952.

Dissenting Opinion Dec. 26, 1952.

Rehearing Denied Dec. 31, 1952.

W. T. O'Sullivan, Albuquerque, for appellants.

Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, for appellees.

SADLER, Justice.

The question for decision is whether the cause of action mentioned in 1941 Comp. Sec. 24-102, of our death by wrongful act statute as being barred within one year from date of its accrual arises upon infliction of the injury later resulting in death or comes into being at death.

The present action was filed in the district court of Bernalillo County on October 22, 1951, by Joseph G. Natseway and Lupita Natseway, his wife, as joint administrators of Raymond Natseway, deceased, against Charles Jojola and Juanita Jojola, husband and wife, seeking damages in the sum of $15,000 for the death of plaintiffs' minor son, 9 years of age, who resided with them at their home on the Isleta Pueblo in Bernalillo County, New Mexico.

The complaint sets forth as the 'wrongful act, neglect or default' of which the defendants were claimed to be guilty the purchase and gift to their minor son, 12 years of age, as a Christmas present, a 22 caliber rifle which he discharged indiscriminately and carelessly in the neighborhood of the homes of plaintiffs and defendants, inflicting a fatal wound on plaintiffs' son on December 28, 1949, from which he died on March 28, 1951. The complaint further disclosed by way of allegation that the injured boy was hospitalized and under the treatment of doctors, surgeons and nurses in an effort 'to cure or leviate his wound or wounds,' as a result whereof the plaintiffs paid out and incurred expenses of about $3,000, to their total damage in the sum of $15,000 for which they prayed judgment.

The record in this case presents us with a state of facts which it is difficult to understand. The complaint discloses a wound inflicted upon plaintiffs' intestate on December 28, 1949, by the discharge of a 22 caliber rifle held in the hands of the minor son of defendants. The allegations of the complaint further disclose that the injured boy survived the injury and died therefrom on March 28, 1951. The complaint was filed on October 22, 1951, well within one year following death.

The defendants filed two motions to dismiss, the first one on October 22, 1951, asserting the complaint to be bad because 'it appears from the face thereof that it fails to state a claim upon which relief can be granted.' Another entitled 'First Amended Motion to Dismiss' was filed May 7, 1952, in which defendants seek a dismissal for the stated reason 'that said complaint was filed more than one year after death of plaintiffs' intestate, and that the cause of action is, therefore, barred by virtue of the provisions of Sec. 24-102, N.M.S.A. (1941).'

The court heard argument on defendants' first amended motion to dismiss and entered the following order, omitting formal parts, to-wit:

'Finds that the complaint herein filed more than one year after the death of plaintiffs' intestate, the cause of action is, therefore, barred by virtue of the provisions of Section 24-102, N.M.S.A. (1941);

'It is therefore ordered that the complaint of plaintiffs be and the same hereby is dismissed with prejudice.'

Notwithstanding the confusion thus arising on the fact that defendants' amended motion to dismiss because the complaint was filed more than one year from death of decedent and appears on its face to have been argued on that basis, as well as to have been decided upon that ground, in a highly commendable effort to have this case decided upon the real issue of law involved, being the ground which he states it was argued below, plaintiffs' counsel asks us to read the amended motion as if it sought dismissal 'for the reason that * * * the cause of action is * * * barred by the provisions of Section 24-102, N.M.S.A. (1941).' He points out that the complaint was filed well within one year from the date of the death of decedent and that, if determined upon the ground set forth in the motion, a reversal would be almost automatic.

Thus it is that counsel for plaintiffs guides us quickly to the real question involved on this appeal and asks us to determine it. That question is stated in the opening paragraph of this opinion, namely, whether the cause of action asserted is barred under the provisions of 1941 Comp. Sec. 24-102, because not filed within one year from the accrual of the cause of action, treating the time of injury as date of accrual. If we are correct in the conclusion we have reached that it is barred under prior decisions of this Court, then regardless of the erroneous grounds advanced for dismissal in the amended motion to dismiss and of the fact that the trial court's order sustaining said motion falls into the same error, we should have been compelled to notice the error and misapprehension as fundamental and to announce the result we hereinafter declare.

The complaint seeks recovery under the provisions of 1941 Comp. Sec. 24-101, reading as follows:

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

The same act which created the right conferred by the preceding section, L.1882, c. 61, also carried a limitation in section 9 thereof, reading as follows and now found as 1941 Comp. Sec. 24-102, to-wit:

'Every action instituted by virtue of the provisions of this and the preceding section must be brought within one (1) year after the cause of action shall have accrued.'

We have in two earlier decisions by this Court held this to be a survival statute. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, and State ex rel. De Moss v. District Court, 55 N.M. 135, 227 P.2d 937, 938. In other words we held in Hogsett v. Hanna, supra, that the intervention of death following the injury which caused it creates no new cause of action in favor of the beneficiaries. And in the De Moss case, although the complaint was filed within one year from death of decedent, yet more than one year after infliction of the injury causing it, we held that 'not only the remedy but the right to maintain the suit was barred at the time the complaint was filed.'

Under the authority of the two decisions mentioned it would seem to follow as night the day that the cause of action in plaintiffs for the injuries to and death of the intestate, their son, was barred unless some good reason differentiating this case from the Hogsett and De Moss cases can be pointed out. The plaintiffs' counsel thinks he finds that distinction in the fact of the infancy of plaintiffs' intestate, a matter we shall next consider.

We thus observe that counsel for plaintiffs ingeniously assails the position of defendants with a two-edged sword, to speak figuratively. First, he advances the proposition that the cause of action asserted by plaintiffs did not arise until death of their intestate. In presenting this claim they are blocked at the very start by the two prior decisions of this Court in Hogsett v. Hanna, supra, and in the De Moss case. Seeking, then, to detour this road block of precedent barring their path, they sieze upon the fact of the intestate's infancy to afford them safe passage around it. In so doing they again meet with obstacles by way of precedent, reason and logic just as difficult to surmount.

The argument is that if the intestate had been an adult our decisions in Hogsett v. Hanna, supra, and the De Moss case holding 1941 Comp. Sec. 24-101 to be a 'survival' statute and the cause of action to arise upon commission of the tort would serve as an absolute bar to prosecution of the suit. The intestate being a minor, however, changes the situation and those decisions cannot control, says counsel for plaintiffs. He argues that the infancy of the intestate brings the case under the saving clause for infants found in the statutes on general limitations as 1941 Comp. Sec. 27-109, reading 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 (1) year from and after the termination of such disability within which to commence said actions.'

Two complete answers to this contention confront the plaintiffs. In the first place, the statute under which they claim creates a new right and in the very act creating it limits the time within which it may be prosecuted. It was thus a limitation, not on the remedy alone, but on the right itself. See State ex rel. De Moss v. District Court, supra, where speaking of the nature of the statute, we said:

'It is clear that not only the remedy but the right to maintain the suit was barred at the time the complaint was filed.'

See, also, 16 A.J. 114, Sec. 168 under 'Death'; Taylor v. American Employers' Insurance Co., 35 N.M. 544, 3 P.2d 76; Foster v. Yazoo & Miss. Valley R. Co., 72 Miss. 886, 18 So. 380; Blaser v. Osage River Gravel Co., Mo.Sup., 219 S.W. 585.

Still other considerations remove this case from an application of the statute providing a saving clause in behalf of infants, cited above as 1941 Comp. Sec. 27-109. Under the express language of the saving clause, it is limited in its application to actions described in the preceding sections of the act of which the death by wrongful act is not one. Furthermore, 1941 Comp. Sec....