Swaney v. County of Gage

• Decision Date: 08 May 1902
• Docket Number: 11,748
• Citation: 90 N.W. 542,64 Neb. 627
• Parties: JAMES D. SWANEY v. COUNTY OF GAGE
• Court: Nebraska Supreme Court

90 N.W. 542

64 Neb. 627

JAMES D. SWANEY v. COUNTY OF GAGE

No. 11,748

Supreme Court of Nebraska

May 8, 1902

ERROR from the district court for Gage county. Tried below before LETTON, J. Affirmed.

AFFIRMED.

F. B Sheldon and Ernest O. Kretsinger, for plaintiff in error.

H. E Sackett and H. E. Spafford, contra.

BARNES C. OLDHAM and POUND, CC. concur.

OPINION

BARNES, C.

This action was commenced in the district court of Gage county by the plaintiff in error to recover damages of the defendant on account of injuries to his person and property alleged to have been sustained by the falling of a bridge on a public highway in the defendant county, which plaintiff was crossing at the time. The petition was sufficient in form and substance to state a cause of action, had it not shown upon its face that the suit was not commenced for more than thirty days after the injuries were sustained. It was alleged that the plaintiff was injured on the 6th day of November, 1899, and the action was not commenced until the 28th day of December, following, fifty-two days after the cause of action accrued. In order to avoid the effect of the statute requiring the action to be commenced within thirty days after the time of the injury, plaintiff alleged that he was so badly injured that he became insane, and confined to his bed, and was physically disabled, and was legally non compos mentis during all of the time from the 6th day of November, 1899, until the following 20th day of December, and that he commenced the action within thirty days after recovering from the disability which prevented him from prosecuting the same. To this petition the defendant filed a demurrer, which properly raised the question of limitation, and this demurrer was sustained. To this ruling of the court the plaintiff excepted, elected to stand upon his petition, and refused to further plead. Thereupon the court dismissed the action, and the plaintiff prosecuted error to this court.

1. But one question is presented for our consideration, which is: Do the facts stated in the petition toll the limitation provided for in the act under which this action is prosecuted, and allow it to be commenced and maintained at a time subsequent to the expiration of thirty days after the time when the injury occurred? This action is based on section 117 of chapter 78 of the Compiled Statutes, entitled "Reads." It was passed by the legislature of 1889, and took effect July 1, 1889, and is as follows: "If special damage happens to any person, his team, carriage, or other property by means of insufficiency, or want of repairs of a highway or bridge, which the county or counties are liable to keep in repair, the person sustaining the damage may recover in a case against the county, and if damages accrue in consequence of the insufficiency or want of repair of a road or bridge, erected and maintained by two or more counties, the action can be brought against all of the counties liable for the repairs of the same, and damages and costs shall be paid by the counties in proportion as they are liable for the repairs; Provided, however. That such action is commenced within thirty (30) days of the time of said injury or damage occurring." This act, which alone creates the plaintiff's right of action, limits the time within which such action could be commenced, and contains no saving clause exempting any class of persons whatever from its operations. The plaintiff, however, contends that the provisions of section 17 of the Code of Civil Procedure apply to this case, and that this action was properly commenced within thirty days after the plaintiff's alleged disability ceased to exist. Section 17 of the Code must be held to have been adopted in contemplation of and with reference to liabilities and causes of action known and existing under the laws of this state at the time of its adoption, and which are classified under the several subdivisions of the chapter in which this section is found. This kind of an action was not known or recognized and could not be maintained, under the laws of this state at that time. The right to maintain such an action was not given until the legislative session of 1889. To hold that section 17, which provides that "if a person entitled to bring any action mentioned in this title * * * be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed," applies to this case, and that by reason thereof plaintiff could bring this action at any time within thirty days after the 20th of December, 1899, would, by judicial legislation, import that section into the act of 1889. The court will not thus usurp legislative functions.

The plaintiff, in a very able and ingenious argument, contends that the thirty-day limitation in this case did not commence to run until December 20, 1899, because there was no person in existence qualified to institute the action until that time; that, independent of authority, it must be considered that the cause of action did not exist until there was a person in existence capable of suing; and that the object of the statute is manifest, and its purpose is to limit the time of commencing a suit to a person in esse capable of suing. We can not agree with this contention. The cause of action in this case arose at the time of the injury complained of. The plaintiff in this case, although injured and for the time being under disability, was living. He was in esse, and it is conceded that this action could have been commenced by his next...