Negaubauer v. Great Northern Railway Company

• Decision Date: 13 May 1904
• Docket Number: 13,905 - (65)
• Citation: 99 N.W. 620,92 Minn. 184
• Parties: STANISLAUS NEGAUBAUER v. GREAT NORTHERN RAILWAY COMPANY
• Court: Minnesota Supreme Court

99 N.W. 620

92 Minn. 184

STANISLAUS NEGAUBAUER v. GREAT NORTHERN RAILWAY COMPANY

Nos. 13,905 - (65)

Supreme Court of Minnesota

May 13, 1904

Action in the district court for Stearns county to recover $5,000 for the death of plaintiff's minor son. From an order Searle, J., sustaining a demurrer to the complaint, plaintiff appealed. Reversed.

SYLLABUS

Statutory Cause of Action.

Where by statute a right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right, and will control, no matter in what forum the action is brought.

Limitation of Action in Foreign Statute.

This action for the death of the plaintiff's son by the alleged neglect of defendant -- the death occurring in Montana -- may be maintained in this state at any time within three years, as provided by the statute of the state where the death occurred. The limitation on the right of action fixed by the statute of Montana, and not that of Minnesota controls.

Donohue & Stephens and Calhoun & Bennett, for appellant.

W. R. Begg, for respondent.

OPINION

START, C.J.

This is an appeal by the plaintiff from an order of the district court of the county of Stearns sustaining defendant's demurrer to the complaint. The here material allegations of the complaint are to the effect that on January 13, 1899, Joseph Negaubauer, the minor son of the plaintiff, was, while in the employ of the defendant in the state of Montana, killed by the negligence of the defendant; that the laws of the state of Montana (Code Civ. Proc. 1895, §§ 510, 514, 578, 579) in force at the time of the death of the plaintiff's son provide that an action to recover damages for the death of one caused by the wrongful act or neglect of another must be commenced within three years; that a father may maintain an action for the death of a minor child, when such death is caused by the wrongful act or neglect of another, and such damages may be given as, under all the circumstances, may be just. It appears from the return herein that this action was commenced more than two and less than three years after the death of the minor. The question then to be decided is whether the Montana limitation of three years, or the Minnesota limitation of two years, as provided by section 5913, G.S. 1894, applies to this action.

The cause of action alleged in the complaint did not exist at common law, which gave no right of action for the death of a person caused by the wrongful act or neglect of another. Scheffler v. Minneapolis & St. L. Ry. Co., 32 Minn. 125, 19 N.W. 656. If, then, the plaintiff has or ever had a cause of action for the death of his child by the alleged wrongful act or neglect of the defendant, it is solely by virtue of the statute of Montana, which requires the action to be brought within three years. Now, it is well settled that where by statute a right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right, and will control, no matter in what forum the action is brought. 8 Am. & Eng. Enc. (2d Ed.) 875; Wood, Lim., §§ 9, 194; The Harrisburg, 119 U.S. 199, 7 S.Ct. 140; Theroux v. Northern Pac. R. Co., 64 F. 84, 12 C.C.A. 52; Rodman v. Missouri, 65 Kan. 645, 70 P. 642.

Counsel for the defendant concede the correctness of the rule stated but urge that the statute of Montana giving a father a right of action for the death of his minor child does not itself fix the time within which the action must be brought; hence the rule does not apply to this case. It is true...