Rowe v. Richards
| Decision Date | 06 June 1913 |
| Citation | 142 N.W. 664,32 S.D. 66 |
| Parties | JESSIE ROWE, Plaintiff and respondent, v. O. H. RICHARDS, and E. R. Richards, Defendants, and City of Watertown, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
This action is brought against O. H. and E. R. Richards and the city of Watertown for the recovery of damages resulting from the death of the plaintiff's husband. The defendant city of Watertown, hereinafter to be designated as the city, appeared separately and demurred to plaintiff's complaint on the grounds:
"(1) That there is a defect of parties plaintiff; (2) that there is a defect of parties defendant; (3) that there are several causes of action improperly united; (4) that the complaint does not state facts sufficient to constitute a cause of action; (5) that the plaintiff has no legal capacity to sue defendant; and (6) that the court has no jurisdiction of the subject of the action."
This demurrer was overruled by the order of the trial court, and the case is brought here upon an appeal by the city from this order.
So far as the record before us shows, the defendants O. H. and E. R. Richards, hereinafter to be designated as the Richards, have made no appearance. In order to understand the questions presented by the demurrer, it will be necessary to set out the facts alleged in plaintiff's complaint with greater detail than is ordinarily necessary.
It appears from the complaint, the truth of which is admitted by the demurrer: That on and for some time prior to the 10th day of July, 1907, plaintiff and one William D. Rowe were husband and wife, living in the city of Watertown. That at that time the Richards were the owners of a certain lot, or tract of ground, fronting on Kemp avenue, one of the main thoroughfares in the business part of the city, and that on the date above mentioned they were engaged in the construction of a certain one-story, brick building upon said premises. That at that time the city was a municipal corporation, with complete control over all the streets and sidewalks in the city. That it had power to establish, and by ordinance had established, certain fire limits, within which limits it had power to designate the character of the buildings that should be erected and the thickness and strength of the walls to be used in the construction thereof. That the city had a building inspector, whose duty it was to inspect buildings in course of erection and to enforce the city ordinance relative to the thickness of walls, strength of materials, etc. That the city had issued a permit to the Richards to erect the said building; that, while the said building was in course of erection, it was dangerous for people to pass along the street in front of the said property; and that it was the duty of all of the defendants to maintain warnings and guards in front of said property to keep people out of danger; but that there was a sidewalk along said Kemp avenue in front of said property, and this defendants allowed people to use in the usual manner without putting up any guards or giving any warning of the dangerous condition of the place. That the front wall of the said building, which abutted upon the said sidewalk, was composed of such weak materials and was so poorly constructed that it was unable to sustain its own weight, and that by reason of the inefficiency of the materials used in the said wall and the faulty construction thereof the same became, and was, a nuisance and a menace to the safety of people using the said sidewalk, and that in their failure to erect and maintain proper guards and warnings to prevent people from using the said sidewalk the defendants were guilty of carelessness and negligence in the performance of their duties to the public. That on the said 20th day of July, 1907, while the said William D. Rowe was passing along the sidewalk in front of the said wall, in the exercise of due and proper care and without any knowledge or warning of the weak and dangerous condition of the said wall, the said wall collapsed and fell over upon him, causing injuries which afterwards, on the 8th day of February, 1912, resulted in his death. That the defendants knew, or by the exercise of ordinary care might have known, of the weak and dangerous condition of the said wall, and that, therefore, the death of the said William D. Rowe was the result of their negligence in failing to erect and maintain guards and give warning to travelers along the said sidewalk of the danger existing at that point.
The complaint further alleged that at the time of the said injury plaintiff and her said husband had one child, a son, of tender age, and that plaintiff and said child were supported by and were dependent upon the said William D. Rowe for their support and maintenance, and that, by his death, they had been deprived of the said means of support and maintenance, and thereby suffered damage.
Appellant in support of its demurrer first contends that the complaint is fatally defective, because of its failure to allege a compliance with the provisions of chapter 90, Laws of 1907. This chapter, so far as it pertains to this action, reads as follows:
"No action for the recovery of damages for personal injury or death against any city or ... town on account of its negligence shall be maintained unless written notice of the time, place and cause of injury is given to the clerk of the city or ... town, by the person injured, his or her agent or attorney, within sixty days after the injury, and any action for such recovery must be commenced within two years from the occurrence of the accident causing the injury or death, ... ."
This presents a question of some difficulty. It is conceded that this action can be maintained only by virtue of the statute. Therefore it must be prosecuted in the manner and under the conditions specified by the statute. It is contended by respondent, however, that the provision of this act, so far as it attempts to control the procedure in this action, is unconstitutional and void, and therefore a compliance with the terms thereof is not required. The title of the act is as follows: "An act entitled an act concerning liability of cities and towns for personal injuries, and repealing all acts and parts of acts in conflict herewith." It will be noted that the title of the act relates only to liability for "personal injuries," while the act itself attempts to include liability for "personal injury or death." The question for determination then becomes whether or not liability for personal injury also necessarily includes liability for death. Or, rather, whether or not the title pertaining to liability for personal injury is broad enough in its scope to include liability for death. After a careful consideration of the subject and an examination of the authorities relating thereto, we are forced to the conclusion that there is a broad, distinction between the two classes of liability, and that the title of the statute in question is not broad enough in its scope to include the liability or cause of action set up in plaintiff's complaint. In the first place, the framers of the law themselves recognized the distinction; for, by the use of the term "or death" in the body of the act, they recognized that the term "personal injuries," as used in the title and in the body of the act, was not broad enough to include liability for death. It further appears from an examination of the body of the law that its authors did not intend nor contemplate that the law should apply to liability for death; because, in addition to providing for the giving of the notice mentioned, it also provided by whom the notice was to be given. It must be given "by the person injured, his or her agent or attorney, within sixty days after the injury." From this it is clear that the act applies only to liability for personal injury as distinguished from death, because it is only during the lifetime of the person injured that he could give the notice or that he could have an agent or attorney for that purpose. of course, it is probable that in case of the death of the injured party the notice required could be given by the executor or administrator, if one were appointed in time, but no provision is made for such a contingency, and it is. apparent from the law that its authors had no such contingency in mind. Again, the law requires that the action must be brought within "two years from the occurrence of the accident causing the injury or death." If this provision were applied in a case like the one at bar, where the death did not occur for more than two years after the injury, this law, if given the interpretation contended for by appellant, would be a complete bar to an action for the recovery of damages caused by death. Such an interpretation would lead to an absurdity, and the words "or death," where they appear in this act, must be held to be mere surplusage.
But, aside from anything appearing upon the face of the act, there is such a broad distinction between the cause of action growing out of a personal injury, as the term is used by the courts, and a cause of action growing out of death by negligence that they constitute two different subjects, and an act, the title of which mentioned but one subject, could not be made to include the other; and an attempt to do so would violate section 21 of article 3 of the Constitution, and the same would therefore be void, so far as the act pertained to the subject not mentioned in the title. The elements that enter into the measure of damages in either case are entirely different from the elements that enter into the measure of damages in the other case. The cause of action growing out of a personal injury is...
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