253 N.W. 437 | N.D. | 1934
Plaintiff brings this action against the defendant, C.C. Turner, as warden of the State Penitentiary and against the state bonding fund on two causes of action. There was a general demurrer to the complaint which was overruled and the state, on behalf of the state bonding fund, appealed and the only question involved is, is there a cause of action stated as against the state bonding fund?
It is the contention of the appellant that it appears upon the face of the complaint that the first cause of action accrued on the 8th day of June, 1930 and the second cause of action accrued on the 9th day of September, 1931; that notice of claim against the bonding fund was served October 1, 1932 by registered letter and more than sixty days after the discovery of the wrongful acts complained of.
The law establishing a state bonding fund was first enacted as chapter
No action can be maintained against the state bonding fund unless the claim is filed within sixty days after the discovery of the default or wrongful act and the right to bring the action is limited to one year from the time of the filing of the claim. This latter provision is a special statute of limitation applying to the state bonding fund only.
It is the contention of respondent that the plaintiff is excused from filing the claim for the reason that under § 10,350, Compiled Laws, *466 1913, his civil rights were suspended while he was an inmate of the Penitentiary and that under § 5838, Compiled Laws 1913, he was deprived of the power to enter into a contract while his civil rights were suspended and, as alleged in his complaint, under the rules and regulations enforced by said C.C. Turner, as warden, plaintiff could not send communications to any person without first submitting the same to the said warden, or his deputy, for the purpose of censor; that any notice thus sent would immediately become known to the defendant, C.C. Turner, and would thus endanger the plaintiff's peace, personal safety and subject the plaintiff to further punishment.
Respondent further contends that the negligence of the defendant, C.C. Turner, was a continuing negligence, continuing all of the time and up to the time the plaintiff was released from the Penitentiary and that the claim was, in law, filed within the sixty day period. The allegations of the complaint, upon which plaintiff relies, are as follows: "That on or about the 8th day of June, 1930, and while plaintiff was so incarcerated in the said Penitentiary and employed for and under the management and control of the defendant, C.C. Turner, a boiler compound tank exploded and injured the right eye of the plaintiff; that the plaintiff immediately sought medical attention at said Penitentiary, where said services are furnished by the state and where said eve could have been properly dressed and cared for by the defendant, C.C. Turner; the defendant, C.C. Turner, negligently, carelessly, wantonly and in violation of his duties as such warden, refused to furnish any medical attention and refused to have the said plaintiff treated; that the said eye was never treated at any time while the plaintiff was so incarcerated and at all times the defendant negligently, carelessly, wantonly and in violation of his duties as such warden, refused to furnish such treatment, or allow the plaintiff to obtain the same." On the second cause of action, after alleging the injury, the plaintiff continues, "that upon receiving said injury, the plaintiff applied to the defendant, C.C. Turner, for medical aid and attention, but the defendant, C.C. Turner, negligently, carelessly, wantonly and in violation of his duties as such warden, refused to furnish said medical attention and the plaintiff was required to remain behind said screen and in said dungeon with said broken hand and foot without medical *467 care or attention and the plaintiff, never at any time while so incarcerated in said Penitentiary, received medical care or attention for the above described injury."
It is true that under § 10,350, Compiled Laws, 1913 the plaintiff was deprived of his civil rights while in prison. Section 10,351 relates to life imprisonment and § 10,352 reads "The provisions of the last two sections must not be construed to render the person therein mentioned incapable of making and acknowledging a sale or conveyance of property." While a convict cannot make contracts generally under this last section he can make such contracts as are necessary for the disposition of his property only. He has no authority to make any other kind of a contract and can maintain no action except those which concern his personal liberty and are based on natural rights as distinguished from legal rights. He may be sued and in such case he can defend. 13 C.J. 918, § 11; 21 R.C.L. 1180, § 18; Coffee v. Haynes,
The bonding fund law has been before this court in several cases. The first, Madden v. Dunbar,
A case very much in point is the case of Cushing v. Winterset,
37 C.J. 985, § 370 states the rule as follows: "The saving of the operation of limitations by reason of disabilities depends upon the statute as it existed at the time the cause of action accrued; in the absence of such a saving clause, the statute runs against all persons, whether under disability or not; and when exceptions in favor of persons under disability are made they should be strictly construed and never extended beyond their plain import or to disabilities not enumerated in the saving clause." 17 R.C.L. 828, § 190 states the rule as *470
follows: "As a general rule the courts are without power to read into these statutes exceptions which have not been embodied therein, however reasonable they may seem. It is not for judicial tribunals to extend the law to all cases coming within the reason of it, so long as they are not within the letter. Considerations of apparent inconvenience or hardship will not be allowed to control. The enactment of the lawmaking power within its legitimate field must not be obstructed by the judicial administration." Particular statutes complete in themselves, or statutes governing particular remedies and rights fixing the time within which the remedy must be pursued or the right enforced, without exception, are not subject to general limitation acts and the exceptions of disabilities therein. Reid v. Hamilton,
The statute we are considering is a complete act in itself. It does not make any exceptions; it is clear and unambiguous and it applies to those under disability as well as to those who are not. This leaves the one contention of the plaintiff, that the negligence of the defendant, Turner, was a continuing negligence; that the plaintiff was entitled to medical treatment during the whole period of his incarceration and that since the negligence continued up until the time he was released and the claim was filed within sixty days from his release that he was entitled to file his claim.
In support of this position the plaintiff relies upon the case of Bush v. Cress,
There might be merit in plaintiff's contention if these authorities were urged to support the liability of the defendant Turner; but they are urged, not against Turner, but against the state bonding fund, which is entirely innocent of any wrong doing. As stated in the Iowa case, the filing of the claim is for the benefit of the bonding fund, to give the officers in charge of such fund an opportunity to make inquiry while the facts are fresh and witnesses can be procured, and the continued wrong doing of the warden cannot be urged as against the bonding fund or against those in charge of it. There are good reasons for excepting persons while under disabilities from the operation of this act but the exceptions can only be made by the legislature. The *472 legislature has made none and hence the law applies to everyone without exception.
The order overruling the demurrer to the cause of action against the bonding fund is reversed.
BURR, Ch. J., and NUESSLE, and CHRISTIANSON, JJ., concur.
MOELLRING, J., did not participate.