Tharaldson v. Unsatisfied Judgment Fund

• Decision Date: 19 December 1974
• Docket Number: No. 8903,8903
• Citation: 225 N.W.2d 39
• Parties: Ray THARALDSON, Plaintiff, Appellee, and Cross-Appellant, v. UNSATISFIED JUDGMENT FUND, Defendant, Appellant, and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 39

225 N.W.2d 39

Ray THARALDSON, Plaintiff, Appellee, and Cross-Appellant, v. UNSATISFIED JUDGMENT FUND, Defendant, Appellant, and Cross-Appellee.

Civ. No. 8903.

Supreme Court of North Dakota.

Dec. 19, 1974.

Syllabus by the Court

1. Absent authorization by statute or rule of this court, an allowance for costs may not be made by trial court.

2. Read in the context of Section 39--17--03.1, N.D.C.C., the phrase 'exclusive of costs' means only that the Legislature intended to allow statutory costs to be awarded as a supplement to, and not as a part of the maximum amount recoverable from the North Dakota Unsatisfied Judgment Fund.

3. Medical expenses and attorney's fees are not allowable costs under Section 39--17--03.1, N.D.C.C.

4. Repeals by implication are not favored. It is a reasonable presumption that all laws are passed with a knowledge of those already existing, and that the Legislature does not intend to repeal a statute without so declaring.

5. To overcome the presumption against an implied repeal, it must be shown that the conflict between the two provisions is irreconcilable. Section 1--02--07, N.D.C.C.

6. In order to find an implied repeal, there must be a clear repugnancy between the provisions of the new law and the old statute to such an extent that a necessary implication arises that the Legislature by enactment of the latter act intended to repeal the former, and then only to the extent of its repugnancy.

7. A court need not know the special reasons, motives, or policies of a State Legislature in adopting a particular classification, so long as the policy is one within the power of the Legislature to pursue, and so long as the classification bears a reasonable relation to those reasons, motives, or policies.

8. The Fourteenth Amendment to the United States Cosntitution permits the states a wide scope of discretion in enacting laws which affect some groups of citizens differently than they affect others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective.

9. State Legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.

10. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

11. The problem of legislative classification admits of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.

12. Where neither a 'suspect classification' nor a 'fundamental right' is involved, the 'traditional' equal protection approach is the applicable standard by which the constitutionality of a statutory classification is to be measured.

13. For the reasons stated in this opinion, Section 39--17--03.1, N.D.C.C., is found not to be in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Lundberg & Nodland, Bismarck, for plaintiff, appellee, and cross-appellant.

John M. Olson, Sp. Asst. Atty. Gen., Bismarck, for defendant, appellant, and cross-appellee.

ERICKSTAD, Chief Justice.

The appellant, the North Dakota Unsatisfied Judgment Fund, hereinafter the Fund, has appealed from a judgment and order of the Burleigh County District Court, entered December 13, 1973, wherein it was ordered that the Fund pay to the appellee, Ray Tharaldson, $5,000 for bodily injury to Tharaldson, $8,675.20 as costs for medical expenses of Tharaldson, $2,000 as costs for attorney's fees, and $19 in statutory costs, for an aggregate judgment of $15,694.20. Tharaldson cross-appeals from that part of the district court's order which limits his recovery for bodily injury to $5,000.

There is no dispute as to the facts of this case. On June 24, 1972, Tharaldson was walking across a street in Bismarck, North Dakota, at a designated pedestrian crossing when he was struck and severely injured by a motor vehicle. The driver of the motor vehicle fled from the scene of the accident before his identity coudl be ascertained. Unable to obtain relief from the unknown driver, Tharaldson commenced this action against the Fund, pursuant to Chapter 39--17, N.D.C.C.

The Fund asserts that the trail court erred in awarding, as costs, the sums expended by Tharaldson for medical treatment and for attorney's fees. It contends that only statutory costs may be awarded to a plaintiff who recovers a judgment against the Fund. Tharaldson maintains that the district court properly awarded such sums as costs, either pursuant to statutory approbation, or as an exercise of an inherent judicial power to administer justice. We hold that the district court erred when it awarded, as costs to Tharaldson, $8,765.20 in medical expenses and $2,000 in attorney's fees.

We have often stated, although in somewhat varying language, that costs are purely the creature of statute, and, absent statutory authorization, an allowance therefor cannot be made by a trial court. City of Fargo v. Annexation Review Commission, 148 N.W.2d 338 (N.D.1966); United Development Corp. v. State Highway Dept., 133 N.W.2d 439 (N.D.1965); Gunsch v. Gunsch, 67 N.W.2d 311 (N.D.1954). The district court apparently relied upon Section 39--17--03.1, N.D.C.C., as authority for awarding the costs in question:

'39--17--03.1. Recovery from fund when liability cannot be determined.--When bodily injury to, or the death of, any person who is a resident of this state is occasioned by or arises out of an accident caused by the operation, maintenance, or use of a motor vehicle in this state and the identity of the person or persons against whom an action might be brought for the recovery of damages for the bodily injury or death resulting from the accident cannot be ascertained, any person who would be entitled to bring such action to recover damages may bring an action in the district court of the county in which the accident occurred within six months from the date of the accident against the state unsatisfied judgment fund, by service upon the state highway commissioner, for the recovery of such damages from such fund, provided notice of such accident was given to some police officer immediately after the accident occurred and the name of such officer shall be alleged in the complaint. No payment shall be made from the fund in satisfaction of any judgment obtained in such action in excess of five thousand dollars, Exclusive of costs, for bodily injury to, or the death of, any one person, nor in excess of ten thousand dollars for any one accident.

'Nothing in this section shall limit the liabilities or remedies of any person on the cause of action, growing out of the accident for which suit was brought against the fund, but the fund shall be subrogated pro tanto to the rights of any person who has obtained judgment under the provisions of this section, to the extent that the fund has made payment in satisfaction thereof.' (Emphasis supplied.) § 39--17--03.1, N.D.C.C.

Tharaldson asserts that the italicized language is the basis of the trial court's action. He argues that since costs are generally provided for in civil cases by § 28--26--02, N.D.C.C., ¹ the addition of the italicized language in § 39--17--03.1, N.D.C.C., evidences an intent by the Legislature to authorize something more than those costs that are generally authorized. To decide otherwise, it is argued, would be to render superfluous the phrase 'exclusive of costs.'

We do not find this argument to be persuasive. Read in the context of the statute, the phrase 'exclusive of costs' appears to us to mean only that the Legislature intended to allow statutory costs as a supplement to--and not as a part of--the maximum amount recoverable from the Fund.

When the Legislature intends to afford a litigant costs other than those normally awarded, it makes its intent abundantly clear. The statutes cited by Tharaldson in support of the trial court's order offer evidence of this fact. An example is § 32--16--45, N.D.C.C., the pertinent part of which reads: '* * * The costs of a partition, including reasonable counsel fees, * * * must be paid * * *' Other examples could be cited, but we shall not belabor the point.

Tharaldson additionally asserts that the courts of North Dakota possess an inherent, constitutional power to award costs as an incident of the administration of justice, notwithstanding any statutory limitations. He refers us to Bucklin, Forgotten Ideas About Motions, 46 N.D.L.Rev. 189 (1970), wherein the author argues that the courts may award costs in excess of statutory limitations, in order to regulate motion practice. Also cited by Tharaldson is the case of Aune v. City of Mandan, 166 N.W.2d 559 (N.D.1969), where this court made the denial of a motion to dismiss an appeal contingent upon the payment of $75 in motion costs by the appellant.

Costs may be permitted by rule of this court pursuant to its inherent and statutory authority. No such rule is applicable to this case.

We shall now turn to the contention that is the subject of Tharaldson's cross-appeal, i.e., that the limit of recovery against the Fund for bodily injury to one person is $10,000, and that the district court erred when it limited to $5,000 the amount it ordered the Fund to pay to Tharaldson. The basis of this contention is that the amount of recovery is limited by Section 39--17--07, N.D.C.C., and not by 39--17--03.1, N.D.C.C. Section 39--17--07, N.D.C.C., reads:

'39--17--07. Limitation on amount payable from fund--Nonassignable.--1. Recovery from the fund shall be limited to payment of the following, exclusive of costs:

'a. Ten thousand dollars for bodily injury, including death, of one person in any one accident.

'b. Twenty thousand dollars for bodily injury,...