Swift v. Sarpy County
| Decision Date | 12 April 1918 |
| Docket Number | 20205 |
| Citation | 167 N.W. 458,102 Neb. 378 |
| Parties | THOMAS F. SWIFT, APPELLANT, v. SARPY COUNTY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Sarpy county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
Mahoney Kennedy, Holland & Horan, for appellant.
Matthew Gering, E. S. Nickerson, W. R. Patrick and E. H. McCarthy contra.
The plaintiff and his wife, Mary Swift, and four other persons, were driving in an automobile along a highway in Sarpy county, Nebraska. This highway terminated very abruptly at the bank of the Missouri river. The surface of the road, as plaintiff alleges, continued unbroken except for marks of travel to the point where it suddenly ended in the river. The plaintiff further alleges that the condition was well known to the county authorities, and that there was no warning of any kind to indicate the dangerous situation. The automobile plunged into the river, and all the occupants were drowned except the plaintiff. The plaintiff, as husband of the deceased, brings this action to recover damages for the death of his wife, the said Mary Swift. The defendant county interposed a demurrer, contending that the action should have been brought in the name of the administrator, instead of the husband of deceased. The demurrer was sustained by the trial court and the action was dismissed. From that judgment the plaintiff has appealed.
1. The question depends upon the construction of the statutes. About 30 years ago our legislature enacted a statute making counties liable for damage caused by its negligence in repairing highways or bridges: "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." Rev. St. 1913, sec. 2995. In such case the damages are of two kinds, general and special. General damages that the public suffers by reason of the imperfect highways, loss of time in traveling over them, and additional expense connected with it are not recoverable. No damages are recoverable that are general and are sustained by the public in general. All other damages are special damages, and if they happen to any person--that is, if any person suffers any damage that is peculiar to him, and not the same as the public in general suffers--he may recover it against the county. Before this statute was enacted it was uniformly held that the county was not liable in the absence of statute, but after the statute was enacted any one who suffered any damages that were not general to the public could recover them.
2. At the old common law a person could recover against carriers or individuals such damages as he might suffer by reason of negligence, unless the damages he sustained resulted from the death of some individual. If a man was killed and his wife and children were robbed of their means of support there was no remedy. This anomaly of the law was remedied by special legislation in England at an early date, and afterwards was remedied in this state by the act of 1873, which provided: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person, company or corporation, and the act, 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 the person, company or corporation "shall be liable to an action for damages." Rev. St. 1913, sec. 1428. The legislature intended to provide for all cases where death was caused by negligence and some party was damaged thereby. If it had been suggested in the legislature to make the language as comprehensive as possible, so that it would cover all cases of damage, it is difficult to say what more general words would probably have been used than "any person, company or corporation." There was no reason why it should not apply to all cases where damages were caused by the death, and it is difficult to say what change would be made in order to make it more certain that that was intended. This statute provided that all such actions should be brought in the name of the personal representative of the deceased person. Rev. St. 1913, sec. 1429. The reason of this provision is that, in case a man is killed, ordinarily there would be a widow and perhaps several children that would be damaged, and to bring an action in the name of each one of them would be unnecessarily multiplying lawsuits. When damage results from the death of an individual this statute applies, and requires that an action for negligently causing such death shall be brought in the name of the administrator of the deceased individual. Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756, was an action against the county, and was brought in the name of the administrator of the estate of the deceased, and no objection was made to the bringing of the action in the name of the administrator, evidently because that question was plain and had been set at rest by other cases. The brief cities Johnson County v. Carmen, 71 Neb. 682, 99 N.W. 502; Lyons v. Greeley County, 95 Neb. 104, 145 N.W. 350; and Bethel v. Pawnee County, 95 Neb. 203, 145 N.W. 363.
By the express language of the statute, a county is not liable unless it is its duty to maintain roads and highways, so that when a county is under township organization, and that duty devolves upon the township, of course no action could be brought against the county. Any other holding would be a very technical attempt to evade the spirit and intention of the statute. Such actions must be brought in the name of the administrator of the estate of the deceased.
I am unable to agree with the majority opinion. On the night of July 30, 1916, plaintiff and his wife, Mary Swift, and four other persons, were driving eastward in an automobile along the highway in Sarpy county, Nebraska. This highway terminated very abruptly at its eastern end, which is within said county, at the bank of the Missouri river. The surface of the road, as plaintiff alleges, continued unbroken except for marks of travel to the point where it suddenly ended in the river. The plaintiff further alleges that the condition was well known to the county authorities, and that there was no warning of any kind to indicate the dangerous situation. The automobile upon reaching the point above referred to plunged into the river, and all the occupants were drowned except the plaintiff. The plaintiff, as husband of deceased, brought this action to recover damages for the death of his wife, the said Mary Swift. The defendant county interposed a demurrer to the petition, raising the point that the action should have been brought in the name of the administrator instead of the husband of the deceased. It was alleged in the demurrer that the plaintiff had not the legal capacity to sue, had no authority in law to maintain the action, and that the petition did not state sufficient facts to constitute a cause of action. The demurrer was sustained by the trial court and the action was dismissed. From that judgment the plaintiff appealed.
The case calls attention to the act of 1873, commonly known as Lord Campbell's act, and also requires a construction of the statute of 1889 making counties liable for negligence in failing to keep their highways in proper repair. Counsel for the defendant county contends that the act of 1873, called Lord Campbell's act, and the statute of 1889 making counties liable for injuries to persons on highways, are separate and distinct; that they are not in pari materia and should not be taken as one enactment. It is contended that the former provides for an action by the administrator of a deceased person, while the other authorizes one who is damaged by reason of the negligence of a county in failing to properly maintain its highways to maintain an action for the damage which he has sustained.
I think the majority opinion disregards the statute itself and also the prior decisions of this court. The legislature of the state in 1889 enacted a law relating to highways and bridges and liabilities of counties for not keeping the same in repair. Laws 1889, ch. 7, sec. 4 (Rev. St. 1913, sec. 2995). The section reads: "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: * * * Provided, however, that such action is commenced within thirty days of the time of the injury or damage occurring." I desire to ask the members of this court who voted for the majority opinion whether there was any statute of this state that authorized the bringing of an action against a county for not keeping its roads in repair...
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