101 Kan. 215 | Kan. | 1917
The opinion of the court was delivered by
W. J. Harwood, the father of Otis E. Harwood, as administrator of the latter’s estate, brought this action against the Chicago, Rock Island & Pacific Railway Company to recover damages for negligently causing the death of the decedent while the latter was in defendant’s employ. From the judgment of the district court overruling the defendant’s demurrer to the petition the latter appeals.
The petition was filed September 13, 1916, and the substance of its allegations was as follows: On January 14, 1914, the deceased, a boy fifteen years old, and inexperienced in relation to: fhé dangers of. electricity, was working under the direction of defendant’s foreman in measuring the height of certain high-power electric light wires crossing the defendant’s right ofiway.' Through the negligence of defendant in using for that purpose’’a' tapeline which contained metal strands, the boy, who was' instructed to hold one end of the tapeline while the other', was thrown over the electric wires, was instantly killed
The abstract contains part of the record of the former action, and from the journal entry of judgment it appears that at the close of plaintiff’s evidence a demurrer thereto by the railway company was sustained upon the sole ground that the plaintiffs did not have the legal capacity'to sue, and that a demurrer by the Concordia Electric Light Company was overruled and the cause proceeded against the latter with a resulting verdict in its favor. No appeal was taken by the plaintiffs in that action from the orders or judgment rendered.
The ground of the defendant’s demurrer to the petition was that the petition did not state sufficient facts to constitute a cause of action, or rather that the cause of action was barred by the statute of limitations. The main question upon which the parties divide is whether or not the limitation in the death statute (Civ. Code, § 419) applies. Plaintiff contends that the action was brought under the employers’ liability act (Laws 1911, ch. 289, Gen. Stat. 1915, §§ 8480-8485), and that as no limitation is prescribed in the act itself, and as the action is upon a liability created by statute, the general limitation which gives three years after a cause of action accrues in which to
The employers’ liability act, under which the action was brought, is the later act, and it provides that all previous acts and parts of acts so far as they conflict with any of the provisions in this act are repealed. Being the latest expression of the legislative will, all repugnant provisions in former statutes must be deemed to be inoperative. The death statute and the employers’ liability act both provide that a recovery may be had where death has been caused by the wrong or neglect of another. Under both statutes actions may be brought by the personal representative of the deceased, but under the death statute the widow or next of kin may bring the action if the deceased was a nonresident, or if, being a resident, no personal representative has been appointed. By the death statute the damage inures to the exclusive benefit of the widow and children or the next of kin of the deceased, while in the later act the damages are for the benefit of widow and children, husband and children, or children or mother or father of the deceased, and if none, then to the next of kin dependent upon the employee. In an action brought under the death statute the common-law defenses' of contributory negligence and assumption of risk by the deceased are available to the defendant, while under the later act neither is a defense, but the damages may be mitigated by the contributory negligence of the deceased to the extent of the negligence attributable to him. The earlier statute covers-only liabilities for death which result from wrongful act or omission, while the later one makes a railroad company liable for injuries to its employees who survive, and also in case of the death of an employee resulting in whole or in part from the negligence of any officer, agent or employee of the.railroad company; and it also enumerates a great number of insufficiencies and defects in the railroad, its equipment, machinery and appli
In Stephens v. Ballou, 27 Kan. 594, it was said:
“If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given, force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (p. 601.)
The general rule is, that if there is a plain and irreconcilable repugnancy between some of the provisions of the old statute and of the new, and as to others there is no conflict, the repugnant provisions of the old must be deemed to be repealed, but the other provisions will be given effect. The old is repealed only to the extent of the repugnancy. (Hornaday v. The State, 63 Kan. 499, 65 Pac. 656; Newman v. Lake, 70 Kan. 848, 79 Pac. 675; The State v. Hoover, 78 Kan. 863, 98 Pac. 276; 36 Cyc. 1073.)
As we have seen, there are important general provisions of the old statute not in the new, and there is scope for the
The question can hardly be regarded as open to further inquiry or interpretation since the decision in Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617. There a recent statute was under consideration, which provided, among other things, that an owner, lessee, or operator of a coal mine should be liable to the widow and heirs of a miner who lost his life' through the willful failure of such owner, lessee or operator to provide for the safety and protection of miners in the way the statute requires. (Gen. Stat. 1915, § 6280.) The act did not prescribe the procedure, nor fix any limitation as to when an action should be brought under it, nor yet as to the amount of recovery, and it was held that actions under it took the same form and course as if conducted under the general code provisions relating to death by wrongful act. It was said:
“No procedure is prescribed for the enforcement of the right, and whenever the legislature gives an action but does not designate the kind of action or prescribe the mode of procedure therein such action shall be held to be the civil action of the code of civil procedure and shall be proceeded in accordingly. (Civ. Code, § 752.) The result is that the mining statute takes its place among the provisions of the code of civil procedure relating to death by wrongful act and becomes subject to those provisions in all respects not differentiated'by the mining statute itself. The action must be brought within two years-, the damages can not exceed $10,000; and they are to be distributed in the same manner as personal property of the deceased.” (p. 254.)
There is a close similarity between that case and this one, and the rule there adopted is-a governing precedent as to the application of the statute of limitations in the present case. The employers’ liability act takes its place in the statutes of the state and is subject to the general provisions of the code applicable to the different provisions of that act, and an' action brought under it for recovery of damages for the death of an employee is subject to and must be tried under the rules of civil procedure not inconsistent with the provisions in the act
The view taken makes it unnecessary to pass upon the question so much argued, whether the decision in the case brought by the parents of the deceased to recover damages for the death of their son, in which the court, upon a demurrer to the evidence, decided that they were not entitléd to a recovery, and from which it appears no appeal was taken, constituted a bar to the action subsequently brought by the administrator. It was alleged that one reason - for the delay in bringing the present action was that the claim agent of the defendant told the parents of the' deceased and their attorney that if á suit was brought against the defendant, and also the electric-light company, and a prima facie showing of liability was made, the railroad company would pay them $2500 as damages; and that they brought such an action, which was not decided until March 8, 1916, more than two years after the death of the son. It would seem from the result in that case that a prima facie showing of liability was not made, as a demurrer to their evidence was sustained by the trial court. Besides, the limitation in question is not only a limitation upon the remedy, but also upon the right, and the right is lost if the action is not brought within the prescribed time. (Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57; Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642.)
In Bement v. Grand Rapids & I. Ry. Co., 160 N. W. [Mich.] 424, it was held that where a statute creates a liability where none existed, and the limitation of the remedy is a limitation of the right, the fact that an agreement or fraudulent representations have been made by the defendant will not estop him from claiming the benefit of the statute.
The theory is that a condition being attached to the right, it must be enforced within the time fixed. In such case the condition really becomes a part of the right and the right is lost if the time is disregarded. It follows that the decision of the trial court overruling the demurrer to the petition must be reversed, and the cause remanded with directions to sustain the demurrer and enter judgment for the defendant.