Platz v. International Smelting Co.

• Decision Date: 30 December 1922
• Docket Number: 3823
• Citation: 61 Utah 342,213 P. 187
• Court: Utah Supreme Court
• Parties: PLATZ v. INTERNATIONAL SMELTING CO

213 P. 187

61 Utah 342

PLATZ v. INTERNATIONAL SMELTING CO

No. 3823

Supreme Court of Utah

December 30, 1922

Rehearing denied March 3, 1923.

Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.

Action by Arthur A. Platz, administrator of the estate of Simon Zigich, deceased, against the International Smelting Company. From judgment dismissing the complaint, plaintiff appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

E. G Palmer and Arthur A. Platz, both of Salt Lake City, for appellant.

Wm. Story and Jas. H. Wolfe, both of Salt Lake City, for respondent.

GIDEON, J. CORFMAN, C. J., and WEBER and THURMAN, JJ., concur. FRICK, J., dissenting.

OPINION

GIDEON, J.

Respondent, by demurrer, pleaded that the cause of action stated in the complaint is barred by the provisions of Comp. Laws Utah 1917, § 6469. The court sustained the plea. Plaintiff failed to amend. Judgment was accordingly entered dismissing the action. From that judgment this appeal is prosecuted.

The demurrer admits all the material facts well pleaded in the complaint. From the complaint it appears that on September 14, 1917, the appellant was appointed, by the district court of Tooele county, special administrator of the estate of one Simon Zigich, deceased. It is alleged Zigich died on September 30, 1915. He was a native of the kingdom of Hungary; was not a citizen of the United States, but was a resident of Tooele county. He left surviving as his only heir his mother, who resides in the kingdom of Hungary. The asset of the estate is a claim against the respondent, International Smelting Company, for damages arising out of the wrongful death of said Simon Zigich. It is further alleged that the respondent is a corporation organized and existing under the laws of the state of Montana, and is doing business within this state. It is alleged upon information and belief that the respondent is the successor in interest of the International Smelting & Refining Company, a corporation organized and existing under the laws of the state of New Jersey; that at all times mentioned in the complaint the defendant was the owner of and operated and managed and controlled the operation of a smelting plant situated in Tooele county, and that said smelting plant was, and for a long time prior to September 30, 1915, had been, known generally as the "International Smelter." It is further alleged that on September 27, 1917, the appellant instituted an action against the defendant in the district court of Salt Lake county to recover damages for the wrongful death of the deceased; that in that action the defendant, by mistake, was designated as the International Smelting & Refining Company, a corporation organized under the laws of the state of New Jersey; that the International Smelting & Refining Company was dissolved on April 30, 1915. It is stated in the complaint that on motion of appellant the court by order permitted the complaint to be amended so as to name the defendant herein the defendant in that action. On November 20, 1917, that action was by the district court dismissed as to the respondent herein otherwise than upon merits. The complaint in the present action was filed in the district court of Salt Lake county on September 3, 1921.

Sustaining the demurrer and the order dismissing the complaint are assigned as error. The appellant has submitted three propositions as a basis for the contention that the lower court erred in sustaining the demurrer: (a) The statute of limitations does not begin to run until a cause of action accrues. A cause of action arising after death in favor of a personal representative of the deceased does not accrue so as to start the running of the statute until a personal representative is appointed and qualified. (b) An action that fails otherwise than upon merits is not barred by limitation if a new suit upon the same cause of action and between the same parties is commenced within the time provided by law. (c) War suspends the statute of limitations as affecting the rights of an alien subject or citizen of the country at war with the United States to commence or prosecute an action in our courts.

A right of action or cause of action in cases such as we have under consideration is purely statutory. No such right of action or cause of action is known to the common law. It is advisable, therefore, to set out certain sections of our Code relating to the questions here presented.

So far as material, Comp. Laws Utah 1917, § 6505, reads:

"When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of the heirs, may maintain an action for damages against the person causing the death. * * *"

Section 6445 reads:

"Civil actions can be commenced only within the periods prescribed in the three succeeding chapters, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute."

By subdivision 2 of section 6469 (in the second succeeding chapter) it is provided that "an action to recover damages for the death of one caused by the wrongful act or neglect of another" shall be commenced within two years after the cause of action shall have accrued.

It is the contention of appellant that the statute of limitations does not begin to run until the cause of action accrues. That may be conceded. There is no claim to the contrary. It is also contended that the statute gives the right of action to the personal representative, and therefore the cause of action here in question did not accrue until such personal representative was named by the court. That may also be conceded if the statute does not authorize any other person to maintain a suit upon the same cause of action. Under this branch of the case, and under the admitted facts, the question to be determined is: Did the cause of action accrue upon the death of plaintiff's intestate or upon the appointment of the administrator?

The statute provides that a suit may be maintained by the heirs or by the personal representative of a deceased. It is alleged in the complaint that the only heir of the deceased is his mother. His mother, as such heir, had the right, under the statute, to institute suit immediately upon the accruing of the cause of action. True the statute provides that a suit may be maintained by a personal representative upon the same cause of action. It is universally held, however, that suit by one of the parties entitled to maintain the action precludes recovery by the other party to whom that right is given.

Many authorities are cited and quoted from at length by appellant to the effect that before a cause of action can be said to have accrued there must be some one in esse authorized to bring such action, and some one capable of being sued for the wrong committed. In Collier v. Goessling, 160 Fed. at page 611, 87 C. C. A. at page 513, the rule contended for is stated thus:

"To start the running of a statute of limitation there must be some one capable of suing, some one subject to be sued, and a tribunal open for such suits."

The cause of action here in question being purely statutory, it must necessarily follow that, whenever the Legislature has designated the agency authorized to enforce such right, its enactment precludes any other agency from enforcing the right or appealing to the courts for redress. Section 6469, supra, provides that an action must be instituted within two years from the date the cause of action accrued. As stated, the mother was authorized by statute to bring this action. The right of action had therefore accrued in her behalf and was enforceable by her immediately upon the death of her son. Can it be said, under the authorities, that the cause of action did not accrue so as to be enforceable by reason of the fact that an administrator was not appointed until almost two years after the death?

The great weight of authority, if not the unanimous authority, supports the argument of respondent to the effect that the statute of limitations began to run against the right of action immediately after the death of the intestate. The Supreme Court of Kentucky, in Louisville & N. R. Co. v. Sanders, 86 Ky. 259, 5 S.W. 563, in our judgment, lays down the rule that is supported both by reason and authority as follows:

"Upon the other hand, however, the law evidently looks to a speedy settlement of such claims. This is its policy. It has, therefore, prescribed the shortest period of limitation. If there be no one in esse who has the right to sue, then the saving in behalf of the infant would apply by virtue of the express provision of the statute, and his right be preserved for one year after the removal of the disability. But here is but one cause of action. The right to sue upon it is given to either of three persons. If there be one of these in being with the right to sue, then does not the policy of the law, and a comparison and consideration of all the statutory provisions upon the subject, dictate that the action must be brought within a year from the accrual of such right to avoid a bar as to all? Public policy and the general quiet must be regarded rather than the individual hardship."

The statute of Missouri provides that an action for wrongful death may be brought by the husband or wife of the deceased, or, if there be no husband or wife, or he or she fails to sue within six months, then by the minor child or children of the deceased. The statute of that state also provides that every such action must be commenced within one year after the cause of action shall have accrued. The Supreme Court of Missouri, in Kennedy v. Burrier, 36 Mo. 128, said:

"When then,...