Wall v. Gillett, 6058
Decision Date | 21 June 1956 |
Docket Number | No. 6058,6058 |
Citation | 1956 NMSC 60,61 N.M. 256,298 P.2d 939 |
Parties | Betty Jean WALL, Administratrix of the Estate of Sterling H. Wall, Deceased, Plaintiff-Appellant, v. Hilton W. GILLETT, Defendant-Appellee. |
Court | New Mexico Supreme Court |
Mears & Mears, T. E. Mears, Jr., J. Fred Boone, Portales, for appellant.
Heidel & Swarthout, Lovington, Smith & Smith, Esther L. Smith, Clovis, for appellee.
The question for decision is whether the 1953 amendment allowing three years for the bringing of suit under our wrongful death statute, Laws 1953, ch. 30, Sec. 1, being Sec. 22-20-2, N.M.S.A.1953, effective June 12, 1953, controls in the case of death occurring in 1952 instead of the one-year period theretofore allowed, N.M.Comp.St.1929, Sec. 36-103.
On August 30, 1952, plaintiff's intestate was injured in an automobile accident and was taken to the office of the defendant in this case, who is a doctor and was practicing in Lovington, New Mexico. The complaint alleges death occurred on September 4, 1952, because of the failure of the defendant to diagnose and treat the patient and instead having him put in jail.
Suit was filed on March 9, 1955; a motion to dismiss on the ground the action was barred by the statute of limitations was sustained and the complaint was dismissed with prejudice.
The plaintiff (appellant) urges the 1953 amendment protected her cause of action and gave three years from the date of death in which to file suit. Such is the rule under our general limitation statutes, which deal only with remedial procedure; but the limitation provision applicable to actions for wrongful death is not only a limitation on the remedy but also on the right to institute such action, as we have held in Hogsett v. Hanna, 1936, 41 N.M. 22, 63 P.2d 540; State ex rel. De Moss v. District Court, 1951, 55 N.M. 135, 227 P.2d 937; and Natseway v. Jojola, 1952, 56 N.M. 793, 251 P.2d 274.
This is our first case where a change has been made in the limitation provision of our wrongful death statute and a party has claimed the benefit of the change because of a death occurring prior to the effective date of the amendment.
In an action under the Workmen's Compensation Act brought under circumstances identical with this case, that is, where a change had been made in the time within which suit could be brought, Wilson v. New Mexico Lumber & Timber Co., 1938, 42 N.M. 438, 81 P.2d 61, we held the limitation statute in effect at the time of the injury controlled. The claim was barred under the six months' limitation statute in effect at the time of injury, N.M.Comp.St.1929, Sec. 156-113, but would have been timely made if the 1937 Act, Ch. 92, Sec. 7, had governed.
The authorities were thoroughly reviewed in that...
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