*1 not negligence is mon-law compensation to which
place claim Berna- court of district
he is entitled. subject jurisdiction of County lacks
lillo proceed further. and should
matter Coors, 52 N.M. rel. v. Prince
State ex jurisdiction is The federal
paramount and
Bros., supra. been said that what has
It follows issued will heretofore writ
the alternative Bros., Foley permanent. Huhn v.
toemade
supra.
It ordered. is so McGHEE, J., COMP-
LUJAN, C. COORS, JJ., concur.
TON, and
251 P.2d et ux. JOJOLA et al. v.
NATSEWAY
No. 5542. New Mexico. Court of 10, 1952.
Dec. 26, 1952. Opinion
Dissenting Dec.
Rehearing Dec. Denied complaint “wrong- sets forth as the act,
ful neglect or default” of which the *2 defendants were claimed guilty be to purchase gift and their son, minor years age, as a present, Christmas 22a caliber rifle which discharged indis- criminately carelessly and in neighbor- homes, plaintiffs hood of and defend- ants, inflicting plaintiffs’ a fatal wound on 28, son on December 1949, from which he 28, died on March complaint 1951. The O’Sullivan, ap- Albuquerque, for W. T. by way further disclosed allegation pellants. injured hospitalized boy was and under Akin, Sloan, Rodey, Dickasoo, &Mims doctors, surgeons the treatment of Albuquerque, appellees. in nurses an effort “to cure leviate his' wounds,” wound as a result whereof the SADLER, Justice. plaintiffs paid out and expenses incurred question is whether the The for decision $3,000, of about to their total damage in the Comp. in'1941 action mentioned $15,000' sum of they which prayed 24-102, wrongful act of our death Sec. judgment. year within one being barred statute as presents The record this case us with upon arises in- its accrual date of a state facts which is difficult to resulting later fliction complaint understand. The discloses a being into at death. comes death or upon plaintiffs’ wound inflicted intestate on present action was filed the dis- 28, 1949, December by the discharge aof County on Bernalillo October court of trict 22 caliber rifle held in the hands of the Natseway Lupita 1951,by G. Joseph minor son of defendants. allegations wife, joint Natseway, his administrators complaint further disclose that Natseway, deceased, Raymond injured boy survived the injury and died Jojola, Jojola husband Charles Juanita therefrom on March 1951. The com- wife, seeking in the sum of plaint filed on October 1951, well plaintiffs’ death of $15,000 for the minor year within one following death. age, son, years of who resided with them home the Isleta their at Pueblo The defendants filed two motions to dis- County, New miss, Bernalillo Mexico. first one on October as- 'being the complaint ground because which he states it to be bad serting the below/plaintiffs’ "argued counsel appears face thereof asks us “it from the sought the amended upon relief read motion if it dis- which fails state a claim * * * “First missal “for the reason that Another entitled granted.” can May cause of action is barred was filed to Dismiss” Amended Motion provisions 24-102, of Section 7, 1952, a dis- N.M.S.A. defendants seek (1941).” points complaint com- He out said that the reason “that missal stated year was filed well within one from the plaint than one was filed more that, date of if intestate, the death of decedent and plaintiffs’ is, therefore, ground determined barred forth set cause of action motion, provisions of Sec. reversal would be almost auto- virtue of the 24— matic. N.M.S.A.'(1941).” defendants’ argument on
The court heard plaintiffs Thus it is that counsel for and en- to dismiss amended motion first guides quickly question us in- real order, omitting following formal tered appeal volved on this us de- asks *3 parts, to-wit: termine That question it. is stated in the complaint the herein “Finds paragraph opening namely, opinion, of this (cid:127) year after the than one more filed whether the of action asserted intestate, the 'cause plaintiffs’ provisions Comp. barred the under of 1941 therefore, virtue is, barred of action Sec. because not filed 24— 24-102, of Section provisions the .year from the accrual the ac- (1941); N.M.S.A. tion, treating the time date the ordered is therefore “It If of accrual. we are correct in con- the n complaintof be and the same plaintiffs clusion we have reached that it is barred prejudice.” with hereby dismissed prior Court, under decisions of this then confusion thus aris- Notwithstanding the regardless grounds of the erroneous ad- amended defendants’ fact the on ing vanced dismissal amended motion complaint the because dismiss to motion and of the to dismiss fact that the trial year from death than one more filed sustaining order said court’s motion falls face have appears on its of decedent error, we into same should have been basis, well as to argued been compelled misap- notice error and ground, upon that decided been have prehension as fundamental and to announce to have case effort commendable highly involved, result we hereinafter declare. law issue of real upon the decided complaint recovery the 55 seeks N.M. 227 P.2d In other The Hanna, provisions Comp. Hogsett supra, Sec. read- words we held of 1941 24— ing following as follows: intervention of death injury which caused it creates no person
“Whenever death of a cause of action in favor of the benefici- act, shall be caused case, although aries. And in De the Moss neglect another, although or default of complaint year was filed within one shall have been caused un- such death decedent, yet from death of more than one der such circumstances as amount injury causing after infliction of the act, felony, neg- law and the or it, remedy we held that “not default, lect, would, is such as if right to maintain the suit was barred at ensued, death had not entitled complaint time the was filed.” injured party maintain an respect recover there- authority Under the of the two decisions of, then, every case, and in night mentioned it would to follow as seem person corporation which, who day plain- that the cause action in liable, been if would have death had injuries tiffs for the to and death of the ensued, shall liable to an action son, intestate, their was barred unless some damages, notwithstanding the death good differentiating reason this case from person injured.” and De Moss cases can be pointed plaintiffs’ counsel thinks out. same act which created distinction he finds that in the fact preceding section, conferred L. infancy plaintiffs’ intestate, a matter we also carried c. a limitation in shall next consider. thereof, reading section 9 as follows and Comp. found as 24-102, now Sec. to- plain- We thus observe that counsel for wit: ingeniously position tiffs assails the of de- “Every action instituted virtue of two-edged sword, speak fendants with provisions preced- and the First, figuratively. propo- advances the ing brought must be section within one the cause sition that of action asserted *4 year the cause of (1) action shall plaintiffs did not arise until death of their have accrued.” presenting intestate. this they claim are very earlier blocked at the We have two start prior decisions this the two held this to be survival of this Hogsett statute. decisions Court in Hanna, v. Hanna, 41 v. N.M. 63 Hogsett supra, P.2d and in the De Moss case. Seeking, ex De v. Court, then, State rel. Moss District to detour this road precedent block of
797 may they prosecuted. fact path, sieze be It their was thus a limita- barring tion, them infancy alone, to afford not remedy intestate’s on the but on they right doing In so around it. itself. passage See State ex rel. De Moss v. safe pre- way Court, supra, District with where speaking meet obstacles again nature, logic statute, to just as difficult we cedent, reason said: n sufmouflt. remedy “It clear but the to maintain the suit was the intestate if argument is that complaint barred at time the our decisions an adult been filed.” hold- De Moss case Hanna, supra, and the See, also, 16 to a “sur- Sec. under Comp. 24-101 be 168 1941 Sec. ing A.J. “Death”; Taylor to Employers’ cause of action v. American vival” statute 76;. Co., would of the tort Insurance N.M. P.2d upon commission 35 3 arise prosecution Valley Co., Foster v. Yazoo & Miss. 72 absolute bar R. as an serve minor, 380; Osage being Miss. So. Blaser v. The intestate the suit. Co., Mo.Sup., those situation and however, changes the River Gravel 585. S.W. control, says counsel cannot decisions Still other remove considerations infancy of plaintiffs. argues He application from this case of the statute sav- under the brings the case the intestate providing saving clause behalf in statutes found for infants ing clause fants, Comp. cited above as Sec. 27— Comp. Sec. as 1941 general limitations express Under language 27-109, reading follows: clause, saving applica is limited in its bringing for the times “The limited preceding tion to actions described preceding provisions of actions of which act sections chapter shall, in favor of minors of this Furthermore, wrongful act is not one. legal any persons under insane or 27-116, Comp. L.1880, Sec. c. Sec. they disability, so that extended 16, plainly saving removes clause and after (1) shall have one reads: here. It application disability with- the termination of such provisions “None this said actions.” which commence apply any chapter shall action or suit particular which, by any complete answers this con statute Two state, plaintiffs. In the limited to be commenced within tention confront time, chapter shall they nor place, the which a different first very repeal existing stat- right and in the construed creates a new ibe claim provides a limita- the state which time ute of creating it . limits *5 798 any action;
tion but in such cases within yedr one the date such after provided injury." the limitation Comp. shall be (Em- 1929 156-116. § phasis such statutes.” ours.) saving There is no* clause limitation It argued that “injury” the word provision by wrongful act stat might the death have two meanings (1) referring provide saving ute and the courts cannot either physical bodily hurt, or exception clause or create an where (2) or legal injury connote the suffered 114, statute contains none. 16 Sec. 169 those in whose favor the cause of A.J. “Death”; Death, C.J.S., 53(b), 25 § arises compensable reason of the See, Turner, 56 page 1158. also Field v. employee; of an that as used in fixing . N.M. P.2d 723 year limitation at one “from the date injury” employed must have been present not un- facts of the case are intendment, with the latter since until present like those our former decision in n eventno of action exists in the de- Louis, Rocky Vukovich v. Mountain & St. pendents; Carrying argument claimant’s Co., Pacific N.M. P.2d step further, states: many respects. cer- construing We were “Hence, ‘injury’ the word where last provisions Compen- tain of our Workmen’s used in ‘death,’ this section means Law, Comp., 156— Sec. sation cited as 1929 death, and, includes having claim been seq. an em- 101 et we held where filed year death, after ployee injuries died on June timely.” 27, 1931, July sustained on rendered compelled We were to hold that under the totally him until date disabled plain unambiguous language of the stat- April 1, 1933, late, claim filed on was too ute the filing of year the claim one year claim be filed within one since must timely. was not words, other injury. controlling pro- date of should have been filed one from the compensableinjury that in the event vided injury just date as in this We case. proximate cause of em- be the should added an per- observation there which is therefor, ployee’s claim under the tinent hardship here as to might named, could be filed on behalf of conditions holding, result from such to-wit: beneficiaries, adding: “It urged that to*declare the statute “Provided, that no claim shall be filed having may this meaning result in brought compen- to recover such suit great hardship particular cases, sation unless claim therefor be filed [*] [*]
“* * * hardship But the fact there followed the we Missouri prior cases adoption no warrant to our may can furnish decided result supply Legisla- their any change what the statute. courts to We feel it has *6 legisla- omit what the rule ture to- should be made the has omitted or Coal ture (Emphasis Martini Kemmerer and not add- inserted. v. us." 707]; Co., ed.) supra Wyo. 265 P. [38 Superior & Butte Chmielewska v. reply plaintiffs’ In his brief the counsel P. supra 261 Co., Mont. Mining [81 proposition advances a novel not thereto- 616], Legislature the intends is ‘What suggested. fore It as is follows: determined, primarily, what be Hogsett “The rule in announced says it cases in the act. It is in our De Moss cases establishes that may had ambiguity resort be legislature in 1882 enacted so-called construction. Courts cannot read into statute,’ but such enactment ‘survival something an that is not within upon the fact that without effect the Legislature, manifest intention of already legislature in had To gathered from the statute itself. adopted part Campbell’s ‘Lord Act’ as legislate, be to and not do so would law.” of the British common interpret. ambiguity There is no in this in conten- We fail to see the merit this statute, requires it nor ad- neither of our contrary tion. It is rationale De Graftenreid construction.’ mits of holdings Hanna, supra, and Hogsett in v. 28 N.M. 206 P. 695.” Strong, v. Court, su- De rel. Moss v. District ex State in minds in thought our same also, Brimhall, 42 pra. See, N.M. Ickes v. Court, De Moss v. District rel. State ex Indeed, urging in 79 P.2d counsel supra, we the contention answered when virtually concedes that our Death us our former overrule deci- should we Statute, Comp.Sec. Wrongful Act present us in line with the de- put sions to Act, '24-101, Campbell calling is the Lord Court Missouri cisions of provisions similarity language in initially we fol- decisions
whose overruled seeing in this a “mere “amazing,” yet fact adopted theory of construction lowed on holding in of our coincidence” view questioned created statute holding De Moss cases that “sur- Hogsett and it is a the beneficiaries no new vival” statute. injured party. We there on the death seems not to< It have to> occurred counsel said: adopting statute, Missouri that in both three case was in that decision “Our supra, case,' may and New Missouri Mexico Cummins have been years after n Campbell Act Lord De Moss
taking so much of case. See Vol. respec- appropriate to their Digest, deemed Mexico Annual .as was Cumulative pe- limitation conditions, accept Pocket changing Part. of re- tive We our share to a year riod, however, sponsibility when, after death for overlooking the error action shall year Library, “after cause of trustees for the State we failed patterned after If catch approving our it in accrued.” the headnotes to Act, with limitations Campbell Lord case. decision of in the De truly differences, anoma- holds, would line Moss case with our earlier part of the as a to it to have restored Hanna, supra, lous decision n common Mis- legislatures of law Statute, what Wrongful the Death Act much adopting so statute; Comp. 24—101, and New Mexico souri is a “survival” § Campbell as desired Act that, (cid:127)of the Lord consequently, arises changing the limita- purposely committed, modified when the tort thus barring tions. action therefor at the end of one there- after. foregoing observations
Should follows from what has been said the con to: answer insufficient be deemed It *7 court that the district was correct sus in counsel, affords by thus made tention n complete taining the motion to dismiss if it even did point out Lord answer n Campbell's Act give wrong doing reason Lock SO'. properly held could Wills, Hence, hart v. N.M. P. common law part of the us as a to come to will be reviewed affirmed. order controlling It is a stat reason. for another sub by parliament long in enacted ute separation COMPTON, colonies JJ., McGHEE
sequent concur. country. Territory v. the mother 250; Maxwell, Browning v. Brown 2 N.M. LUJAN, J., not participating. C. 677; N.M., Gild., Territory P.9 ing, 3 Hale, P. 583. 13 N.M. v. COORS, (dissenting). Justice' mention the I am unable concur the foregoing should closing we Court, inaccuracy synopsis opinion holding that the fact for wrongful to De paragraphs of headnotes two is the first “death,” year mentioning within one instead barred from the date of case Moss tort, of the injury date from which infliction rather than commission cor been noticed and has run date of limitations wrongful subsequent printings of death. in all rected by cause of action were overruled examination A rather exhaustive having Supreme clearly Court of Missouri as in states discloses that authorities years prior wrong to ours ten to the decision in similar wrongful death statutes unanimously held Hogsett have almost An examination of the courts case. transcript exist or original does not and the filed in that the cause of action briefs Hanna, I Hogsett supra, believe the being come until death. case of v. dis- into only opinion is not of this Court closes that there no issue in the was raised clearly but is fundamentally erroneous trial court nor in this appeal court on unreasonable, unjust any way parties illogical asking, seek- de-' clearly opposed ing making to almost all modern it material for this Court to passing wrongful whether the cisions and text writers determine death stat- question. ute in Mexico was a statute of sur- creating vival a statute a new cause of Apparently support for the fore- the sole action. opinion question precedent going on said Point made III the defendant Hanna prece- careful of such examination was, under the wrongful New Mexico dent, which is the rendered death statute a master cannot be held liable Hogsett v. Court in 1936 in the case of for wrongful death caused the tort of Hanna, 540, 542, dis- 41 N.M. 63 P.2d being his servant. In that was case Hanna worthy precedent closes that the is not wrongful Hog- sued for the Dr. apparently being ruling followed for the sett caused the tort of Hanna’s servant. Hogsett announced in the the Court pointed Planna out that the section of dicta, pure wholly im-' Hanna case was statute relating to the of action for unnecessary material and to determine the carriers, against common issues involved Not case. 24-104, 1941,Annotated, had Statutes N.M. dicta, it dicta but it was erroneous phraseology different from the other section later shown herein. To determine the is- dealing with causes of ac- v. Hanna case sues it was persons (not tion other common statute, wholly immaterial whether the carriers) N.M. 24— creating or one a new cause one of revival *8 1941, Annotated; Statutes that the section of action. relating to common .specifically carriers quot- Missouri cases cited and three The made the common carriers liable wrong- authority ruling for such ed as by negligence ful death officer, of an was statute a statute of employee, wrongful agent, servant or while the sec- dealing creating a statute a tion with than rather survival person spoke of liable caused only wrongful generally wrongful death by did, wrongful of his act, by or default virtue of neglect “the unlawful mentioning respondeat superior, per- rule specifically of make such without another” con- employees. negligence Hanna son liable for whether com- his servants or agents, wording by mited personally agent or or his servant that difference tended when acting scope statute showed of his em- within the two sections of (not relating par- ployment authority. of or Neither general section that under the any could defendant ties to action in wise contended carriers) a such to common upon point depended caused that of another the decision that the death liable for held act, question wrongful any personal way of whether own his be held or or could not not was and the statute one survival neglect or default act, or de- wrongful neglect creating action. liable for a agent; that servant fault his Court, however, that considering of the statute the two sections difference in case, improperly and wandered far afield Legislature intention of a clear showed approving- largely was inserted dicta which for the liability the master place no ly quoted from three cases of agent servant his negligence Court said: Court Missouri. Our repeal the well estab- implied was defendant maintains that “The superior with respondeat doctrine of lished in- ruling that an trial erred court servant master and law of to the reference was liable for dividual master agent action for wrongful death caused tort of principal and servant, *. his wrongful death. originally was passed “Our statute Hogsett, plaintiff, administrator chapter 61 as of the Laws 1882 and Hanna and as- the contention denied taken from the statutes of Mis- creating liability for the statute serted souri. Prior to enactment of this caused Legislature, our Territorial another did default of neglect or act, of Proctor & St. case Hannibal v. regarding established law well repeal our Company, Railway 64 Mo. J. and, particularly, servant
master decided been court last re- ” * * * respondeat superior; known of that state. doctrine sort recognized doctrine quoted briefly then from Proctor Our was and had been con- Hannibal, supra, quoted law and also common the law in later two cases recognized opinions Mis- tinuously decided in making which were the statute souri Mexico,
803 When, then, adopted the action accrued.’ did the subsequent to the time we think cause of action We commonly known as accrue? Missouri the cause of action accrued whenever All of these three death statute. perfect opinion liability held the defendant’s became from in such quoted cases complete. was the defend- wrongful death act Whenever that the Missouri ant did not create a had done an act which made him a statute of survival action, damages, of them liable in there none was a person respondeat su- esse to whom the the doctrine of involved quoted, ought paid might case to be and who sue perior. Only first Missouri same, Hannibal, clearly supra, decided and recover the then was Proctor v. wrongful death the cause of action had passage of our accrued as prior to the then, When, him. li- reading that case discloses that did this act and a ability place? preceding Evidently take expressly overrule the at the it did not ”* * * Kennedy. death of Supreme of Missouri Court decisions opposite. held the exact which It rather odd to find that the decided in 1876 case The Proctor was Hannibal, in the said case of Proctor v. thereto, while, previous just supra, court, judge written a new in the case Supreme Court Missouri failed mention to even or cite the de- two Mo. said: Feighner, 60 v. Entwhistle cisions same court which had de- “ was the husband When question exactly opposite cided the to the time first it was for killed, then decision in Proctor v. Hannibal which accrued to of action the cause clearly overruled the rule announced in the hus- Had the plaintiff as widow. his previous two decisions. survived, could never this action band Daues, ex rel. State Thomas v. action in is an brought. It been 283 Mo. S.W. A.L.R. and defendant plaintiff years prior to the ten decision of our own arise did not for it parties, be could Hanna, ” Court in the case of v. * * * death. husband’s after the till supra, Supreme spe- Court Missouri by the made ruling was similar A cifically overruled the decision rendered early as as 1865 Missouri in the case of that Court Proctor v. Hanni- Burrier, Kennedy Mo. case bal, supra, specifically approved said: it is wherein rule laid down in quoted the the Missouri pro- the act section of sixth “The Feighner, Entwhistle v. supra, case of brought 'within must suit vides time the cause of follows: year from killed, was then sent her cause “When the husband damage time the cause to herself. With first her for the plaintiff (absent to the a settlement of of action accrued her cause survived, sprang up then action) his the husband for the first widow. Had (under Damage time Act) never could have been a cause *10 of in in her brought. an action which action There was It is husband. no her plaintiff (be- could be survival cause of action and defendant of arise cause that parties, merely damages not till for for did was ” * * * by her), “We suffered but new death. there was a husband’s and different cause of Wagner, (by convinced that action virtue thoroughly are Damage Act) of given J., was when Entwhistle v. to hus- right, * *” * negligence band. The supra, he the defend- Feighner, said: of both, ant was incidental a factor repeats the statement then fact does not change the situa- quoted proceeds just the rule above tion. Her cause of might language: following purely been a common-law action for very purpose Damage “The damages, but certain it that the hus- give a was to cause Act purely statutory band’s action is a ac- at common none existed action where ” tion ac- revive a cause of It did not law. quoted This last above decision Thom- belonging the de- to tion theretofore Daues, supra, as v. has been followed con- ceased, ac- gave but it sistently in By Missouri since 1926. bearing parties relation- to named tion decision the Court Missouri ex- Take the instant ship to the deceased. pressly overruled its decision rendered in had a cause of ac- Thomas Mrs. case. years prior the Proctor case 50 be- thereto in her was breath there as long tion so they cause clearly found it was erroneous negligent for her body fearlessly and incorrect announced cause of ac- that is injury, but harmony their decision with the clear by has reason her husband tion unambiguous justice statute and in His cause of ac- Damage Act. persons provisions within the by inflicted statute penalty ais tion statute. course, her death Of death. her interesting It note appellate negligence caused liability early courts four states which in there cases before defendant held death act the defendant. Ab- was one part of
'805 course, their the common law there specifically overruled Of later of survival no declared was death caused previous erroneous and holdings by wrongful act of another but the cause new cause of ac- created a of action was authorized and created error their own These courts saw tion. respon- Campbell’s what Act place blame and is known and did not as Lord corrected their British in 1846. It was en- legislature but Parliament sibility on the former de- titled “An the Fami- Compensating Act for overruling own their error It with the al- lies Persons get in line Killed Accident.” order to cisions passed subject. authority single as a act and not in con- most unanimous Missouri, respect- nection with legislation Ala- other courts were those of These ing any type bama, Pennsylvania. other of tort or action there- See 16 Am. Ohio and Kennedy copy An for. exact Note Jur., of the Act is found P. 48 and Chitty’s Edition, Davis, English Statutes, 6th Ala. So. Ann.Cas. Vol- 1913B, Pages ume begin- 587 to 589. From the ning throughout it was treated general While rule recognize the we England courts creating a new cause adopts which is that a stat- where state of action unknown the common law. state, adopts ju- from another ute Referring the limitation of time with- *11 placed upon dicial construction in which an action should be commenced excep- recognize state we also must quoted: following under the Act the tions to that that such a rule are every “And such action shall be com- unsound, good construction is or that some (12) menced within twelve calendar appears following reason for not such con- the death of such de- months struction, or that the courts state person.” ceased proper adopting the statute should see Campbell’s Act original Lord While refuse follow such decisions sound passed being act without com- was as one interpretations the statute. Dow v. of legislation we find other bined with 568; Simpson, N.M. P. 132 Chet- upon the statute based in America Blake, 335, 142 P. ham-Strode v. 19 N.M. Act, passed by Campbell’s which was Lord 1130; Farmington, Palmer v. Town of legislatures of the majority of 227; Montoya, P. White v. N.M. large in a number enacted of states was 241, 126 P.2d When 46 N.M. an ex- only part creating of an act as a states ception appears, present inas case and tort authorizing also numerous actions and Hanna, supra, in rule does entirely .the nature than the different ac- anof is, causing death. That apply. not tion of .tort many of action shall America have accrued but wrongful death statute chapter Missouri of some statutes and in the New Mexico only portion states is in tort passed, statutes which were many types of dealing with part death act was thereof and such act. created there were for numerous other actions tort and in Missouri was the case both Such created and by other authorized sections of in numerous Mexico as well in New the same act and the section with reference was In Missouri other states. to the bringing limitation of time for the “An Act entitled passed in-1855 of the action in the said two states related in Actions Damages Contributions of types to all action authorized the act section au- In the of Tort.” first types whole act. several There were damages action for thorized an tort actions so authorized in both the New falsely maliciously person who Mexico and the Missouri that were acts not guilty any person has been published that in any upon wise connected with or based second, adultery. third and fourth death. in all ma- contained a reenactment sections Campbell’s The so-called wrongful Act respects of Lord statute of terial termed, New Mexico originally passed in 1882 or, now as it is appears Chap- authorizes actions the Session Laws as fifth section act. ter 61 entitled: operators Relating “An Act railroads to Dam- against owners ages.” The first animals three injuring killing sections Mexico Act are therein the same recovery as the Lord Campbell’s Act and provides: the Missouri statute their value. The section sixth above mentioned respects 147; all material Mo.1866, Chap. Gen.Stats. but there are nine sections to the act “Every action virtue with instituted only the first chapter, bearing three newly preceding sections of created cause of action for be commenced within caused shall wrongful act, neglect or shall default after the cause of such another, or carriers, caused common accrue.” remaining while the sections act re- original noted Lord It will be late to authorize other and different provides Campbell’s Act the action any way in tort actions having to *12 year onfe commenced within shall be death persons. or do with death, statute as well the Missouri while own, provides that it shall be act, as our Chapter New Mexico This 61 of Laws, year one after the 1882 Session also authorizes brought within cause suits set fire to persons who shall held in against unanimously states having statutes woods, prairies whether he is similar to ours that or the action marshes accrues at not if the fire causes time of owner or thereof as is shown authorities person, pro- any damage any other hereinafter cited. recovery damages double vides for Chapter 61 of the Session Laws of for a provides injured party. It also 1882 of New Mexico “An Act entitled: willfully penal one different action Relating to Damages” the section first marshes, prairies. woods, or setting fire to dealt thereof the cause of for with and au- for provides This same also wrongful death for which common carriers against com- of actions thorizes the filing responsible were made second sec- recovery of for the mon carriers tion dealt wrongful with the death caused com- injured killed such for animals or act, (not etc. of another com- with procedure carriers mon carrier). section, The first mon relating finally, ninth thereto and reference liability, provided, railroad’s after stating laws, it is Mexico said New section of that the railroads should pay forfeit and stated: every person so dying $5000, the sum of virtue instituted “Every action as follows: be this act must provisions “ * * * may which be sued and after the cause year one brought within recovered; first, by the husband or ”* * * accrued, have shall deceased; second, wife of the or if course, does not limitation, of
This wife, there be no husband or or if death of a resulting in the apply to the torts or she to sue within six months fails tortuous various the other person but to death, such then the minor prop- damages to reference after actions with dece-ased; child and authorized or children mentioned are erty which * * *” therein. (Emphasis ours.) con- the United States If courts there be no such relatives as named ac- which limitation within struing then above suit could filed father and com- must be unlawful tion mother, etc., survivor. between no distinction made have menced is directed to the language Attention employ which statutes the statute itself portion creating after death” or year one “within words action, says: which employed the have words those “ if he or she fails to sue of action “within have months after they almost six accrued” shall *13 808 ond, wife, if of if there husband be no or or children child or by
then the minor * * *” she he or fails to sue within six months deceased; the death, by then the minor child or this If, by after for and decided as contended third, children deceased and fa- the accrues at of action court the that cause mother, ther or etc. rather was committed the tort time phrase this meaning can than at what death Court, Gallegos It has been held this have It can have? Atchison, Co., & S. F. R. N.M. T. 28 entire act construe meaning when we 214 P. 24-102 of Section language to plain unambiguous and in its Annotated, Mexico Statutes 1941 the time at action accrues mean that the Chap was originally passed Section 9 as provide not, the act why would death. If 1882, applies ter Laws Session or wife did if husband surviving death to both sections of our then sue six months not act, the one carriers to common relating suit. If bring should relative another per the other relating and section to other important creating event not the were carriers). 3 of (not sons common Section running beginning cause Chapter said the Laws of 1882 states: why this limitations the statute of accruing “All other What act? phrase inserted sued last section shall be preceding opin- maj ority ? The meaning could parties the same recovered completely ignores this of the Court ion provided as same manner ” phrase the statute. * * * 1 of act. section re- 1 of the section being the act Section Chapter act, said found original lating against to suits for provided 61 of the Laws 2, which is and Section carriers common action, brought under the whether section” preceding the “last as referred carriers, or common against section first others against to acts relating is the one against second section brought under common carriers. than brought not persons, should be other 3 then fol- goes said Section on as bene- the deceased representative of lows : named in the statute fit of beneficiaries “ ** every such against that either action present at damages, such jury may give persons other should carriers common dollars, they thousand exceeding five specific relatives named brought just, with reference Act; is, deem'fair may first of1 in Section and, necessary resulting sec- of the deceased wife husband case v. Hanna parties, surviving to the *” ** said: to sue. may be entitled who ours.) “The whether (Emphasis determinative fact is said- reasonably intelligent reading survived, Hogsett, or not Dr. if he had A par- Laws of 1882 chapter have maintained an action could ticularly relating to a those injuries sections the defendant received. *14 the to giving death wrongful disputed. for proposition This of action This is not ordinary, law in that found their' point against words ruled defendant.” is the but giving meaning and usual common simple is but This a statement law parts of meaning of all the ignoring not quoted the Court from Missouri cases why wrongful to relating the sections wrongful the death statute holding plain, is clear discloses the statute one of than creat- was survival rather nor calls for neither unambiguous and cause is hard a new to under- ing interpretation. The any judicial demands for, before, entirely stand as said was opinion this case the Court’s author unnecessary to If decide issues. Dr. opinion the case quotes from cites and not Hogsett negligent been killed had Strong, N.M. De Graftenreid v. servant, act of Hanna’s done in the course for me necessary It not P. employment, of his but in- suffered majority opin- length as requote at to lived, juries course, would have case, quote to but from this has ion damages injuries had a suit for his for un- lines, which read: last two very der the law Mexico recog- New ambiguity this stat- no “There the man liable nized for an- injuring requires nor admits ute, it neither wrongful his act or other negligence, of construction.” he did whether the act personally or length, authority quoted greater at With his through servant the course of his under- opinion is difficult in the Court’s employment. That was admitted par- all easily dis- could so stand how author suit, wrongful ties quotes, authority which he regard very provides relatives may named maintain an plain judicial construction which denies where, if action for death death had not proceeds put a forced and then statutes resulted, injured party could have main- upon a upon the statute based construction recovered tained action and damages an for mentioned, which was prior decision above clause, personal injury. This his according present and which authorities, dicta makes all to most inserted Campbell of the Court in this case erroneous entirely Act and all Lord acts fashioned unjust. upon the Campbell based Lord after or statute, pur- notated, Act, for the Hogsett’s it is own for the in our administrator limitation the benefit pose some of the named beneficiaries putting wrongful for death and right of action would have of action any wrong- Hanna account death of allowing generally the relatives Dr. or the negligence ful in order caused representative for the beneficiaries sue Hanna’s servant. by them on account damages suffered any These conclusions are reached from
of death. logical consideration of common law negligence of law. ing Dr. his na he would named tives, master! tory negligence, sions of the servant hold the master of his servant who was wrongful act of a fellow ant who was recognizing the As an injury under Hogsett would the of would master, in the the master case, had died action, Likewise, instance, have injuries have Hanna’s injured by but also statutes, had no cause of action for fellow had he recover such facts of injured neither could liable; had no cause of undoubtedly have his because, under the said caused because the very Hanna servant by his servant lived, against surviving servant could not the common his statute, if case, however, had he own contribu- negligence explicit and, rule, the representa- negligence relatives existing that be- of the provi- lived, Han- serv- pro- law his a We 899-c, under the ute In Restatement of the wrongful death statute. it existed and was statement of the plete the been where no action could have been brought by the deceased had he not [*] a English Act. modeled more or survival statutes are as ‘death acts.’ Most of these are corrected omission begins “A cause of action for death is com- find, “Although the death statutes create “In [*] rights killed, when death [*] fair » to United run” we of no the common law statutes Am.Jur., heading *15 action, * * * reasonable Law— the right applied occurs; States, less Law— deceased. Hence colloquially find the following: Torts, both of dependent upon Page “Time It is said in Re- closely likewise, -Torts, reading they * * * Section 925: has been when stat- and the on the known exists. Sec. Section Mexico ” Chapter the said 2 in of Section visions following: as Section now known of Laws “It is essential to the maintenance 1941 An- of action for death 24-101, Mexico Statutes by wrongful New of action that which act or than existed act or default that the . person, would, and is to living allowed statute by default character be such of survive. entitled ensued, if have death had not person an ac- injured to maintain Mexico Legislature, in New respect damages years prior passage
tion recover to two limitation thereof. This act, passed wrongful death survival a stat- express provi- of action is created 11 Chapter is found ute Section Campbell’s Act and sion of Lord Laws, 1880 Session the New Mexico 5 of most of the statutes in the States based “ * * * It is thereon, usually held United now Sec. limitations This Chapter 27-110, of various 5 was an N.M.Statutes 1941 kinds of actions dealing Ann. with Limi- (cid:127) present is the of our basis Statutes of condition that the one which action be tations, many having not sections by the de- could have been maintained this 11 of changed day. to Section been if has no ceased death had ensued 1880, pro- Chapter said 5 of the Laws loss reference to nature person vides “if entitled to that: person entitled injury sustained or year cause of action one next die within recover, at- to circumstances previous expiration limitation to the and the nature tending provided, representatives above wrongful act or omission which made have after such persons shall one As stated action. the basis of the commence ac- said death within which condition, construing court in one statute tion.” same revival is now This solely it was inserted in found in our New Mexico Statutes time, At purpose 27-110. kind and Annotated Section defining time, Mexico has ever since delinquency with which the degrees of recognized person in- wrongfully chargeable order defendant must ” might the tort jured another *** subj ect him to action. (cid:127) suffered. So cause of action have statutes of survival states Many revivor statute case of general be such clear their are shown certainly of action having a cause states have intent. both Many wording applied persons having must have a cause for actions in tort as well survival tort and died action in who acts *16 said section. provisions of also have wrongful actions and other Campbell’s Lord based repealed has statutes never been This or death therefore it is force and and different kind amended is distinct a Act which a today effect allow well apparently would as decisions from Britain. These deci- representative sions, to bring of deceased which announce the modern and injuries action for tort suffered practically for the unanimous holding with refer- up time of death. virtue of tort question, ence to this can be found obviously different would be Such action hundreds in the reports various annotated action entirely from new of and it unnecessary to take the or time wrongful death act space created our so-called quote cite or from them here but relatives authorized beneficiaries or which I shall myself confine to citing and quoting and in- damages to sue for only a few such authors. of the death juries suffered on account Supreme Lurton Court Justice specified in the relatives or beneficiaries States, United Michigan the case of action. Vreeland, Cent. R. 59, 69, Co. v. 227 U.S. have states which are few There 192, 195, S.Ct. 57 L.Ed. said: so as to statutes their revival amended statute, “The action giving an damages not in the revived allow the benefit of certain members lifetime occurring during family decedent, essentially suffered virtue but deceased identical with the first act which ever in such to named relatives and his death provided for a cause of action arising few, states, only a the courts being there out of the of a human being,-— n are, usually are such statutes held have that of 9 and 10 chap. 93, Viet. known be, re- wording shown their plainly Campbell’s as Lord act. This act has These, however, entirely are statutes.
vival been, in its features, distinguishing re- copied phraseology acts different many enacted in states, and both upon, Campbell the Lord from, based in the courts of the states Eng- and of wrongful death Act, statutes as are such land has been operat- construed not as Mexico. of New as' ing a continuance the injured person would authorities holding for his but as a of action create new cause statutes independent cause of action the time the action accrues purpose for the of compensating certain numerous that it would re- are so of death dependent members of the family cite them. pages merely quire several deprivation, pecuniarily, They resulting include decisions of the States, highest from his to them United death. statute, having states courts
813
class
A.L.R.,
designated person
beginning
in 74
an annotation
In
benefit of
persons
by them
find,
14,
loss sustained
the follow-
Page
on
Page we
at
of
for
”
**
death.
through
wrongful
the an-
by the author of
made
statement
ing
ours.)
(Emphasis
:
notation
for
given
action
of
so
right
“The
theory
the
A
of
brief statement of the
specified by Lord
persons
benefit of
the
principle
is
in St. Francis
involved
found
Pym
held in
v.
Campbell’s Act was
Hospital
Thompson
v.
4
(1863)
R.
Best.
Co.
Northern
Great
reported in 159 Fla.
Court of Florida
Eng.Reprint, 508—Ex
122
& S.
710, 711,
31
ending
upon
injured,
grievance’
the 'new
cited
are
annotation
and recent.
In this
which the action is founded does not
contention
upholding my
hundreds of cases
exist.”
a new
the cause
editor
Koons,
death. The
accrued
also
U.S.
Reading
See
Co.
statement 58,
following
makes
L.Ed.
annotation
S.Ct.
835. From 174
A.L.R.,
quote:
Page
Page
817:
we
*18
“In
City
Cummins v. Kansas
Pub.
weight of
great
to the
“According
Co., 1933,
Serv.
334 Mo.
applica-
66 S.W.
period
the limitation
authority
920, it
2d
was held that
aif widow who
wrongful
ble to
cause
action for
brings action for her husband’s
death,
death
the stat-
whether contained
thereafter,
within six months
dies
right
or
creating
ute
the
of action
death,
within the
limitation,
following his
be-
general
statutes of
then his
may
minor
still main
gins
run
the time of the death
children
to
from
tain an
they
action for his death if
complained of.”
commence it
says,
year following
within the
himself
Page 821 the annotator
On
such death.
pages
after several
of citations:
Agur, 1939,
“In Fair v.
Mo.
right
“This
that
of action
view
133 S.W.2d
it was
held
as
accrues
is maintained
at death
time ensuing
wrongful
for
al
the contention that the time
ways
death,
dates from the
time of
that resulted in
should
cause of action
accruing at
time to
of the
running
mark
beginning
widow,
lapse
and after the
of six
statute.”
months, passing to the minor children.”
quoted
Louis
Page
find
from
On
we
Page
From
833:
Clarke, 1894,
ville,
E. & L. R.
St.
Co.
“The general
giv-
rule under statutes
230, 14
rule, however, Hanna, of ac- that the cause v. is but failed to show that Su- the preme from’ the statute runs of Missouri cas- tion accrues and Court overruled the Hanna, and not the time es cited in Hogsett our Court v. supra, early 1926, time the tortious act was committed. ever since as is # [*] [*] ” before more particularly shown. help that in observing One cannot certainly good ground There to believe opinion McGhee in a question rendered decision dis- Justice Moss, rel. District cussion decided be- long case of De State ex v. was Court Dist., 135, Hanna, fore the Hogsett supra, 55 N.M. case of Court v. of Sixth Judicial ques- the same and that -our involved earlier case was decided ex- 227 P.2d which opposite reference to' con- actly have here tion we with rule announced in statute, Hanna, Hogsett supra. struing wrongful death v. our attempt nor defend justify Court did not The earlier case which we refer Hanna, supra, v. made in ruling Atchison, Ry. Gallegos v. T. S. F. & ruling in the last merely followed Co., 28 N.M. In P. opin- precedent. The mentioned case as a opinion by find the fol- Bratton we Justice case, De Moss v. District Court ion lowing : approv- supra, one statement did not make complaint “The was filed in trial case decision Hanna the former ing 28, 1919, on court March which it reasonableness, logic, because its for its ap- charged _ death of fact, just. pellant’s father, wrong- which was so that it cared seems intimate of the Court caused, fully negligently occurred merely follow defend it but would not to 1, 1914, was more October which announced there- change it and not the rule years prior than four filing in, although argument it admitted complaint, question the sole overruling consider- change or contained' for our determination is whether or able force. pleaded so not the cause of action was. opinion in the De Moss v. -District barred limitations. case, supra, mention that in did Court ** said, what we have From it is had, Missouri original obvious that the City Kansas Public case of Cummins requires suits character of this Co., S.W.2d Service Mo.. (cid:127)to be instituted within one cases Missouri overruled mentioned.in after the cause *20 of action shall accrued, case- Mexico was in force at the time the-'former opinion well The appellant’s majority quotes a father met decision his subsequent construing statute found in as at all dates our material Work- Compensation thereto; and, not men’s Law and construed in this Louis, than' Vukovich Rocky St. instituted until more Mountain & having been Co., thereafter, court Pacific 40 N.M. 60 P.2d years four the trial 356. The quotation argument correctly in favor with directed a verdict reference to appellee statute this case and is entirely irrelevant present particular in the case. The Work- opinion over- harmony This is with Compensation men’s Statute relating to it must weight authority whelming claims filed being beneficiaries reads as in no opinion though stated be even opinion: in the majority stated fact, filed original record way shows the “ *** Provided, that no claim in this last in the case does death show brought filed or suit shall be to recover The instantaneous. mentioned case was compensation such unless claim there- in- hit a railroad train and decedent was yew filed within for be These, appear facts stantly killed. do not injury.” (Emphasis ours.) date of Court, in the but the will prior part The of this statute refers to seen, says implies nowhere injury to workman arising from accidents the time action accrues at of the commis- employ- out course of his of the tort and that the of limi- sion statute injury” ment. The words "such could refer begins to run from that tations time. nothing else than the of the work speaks of the time Court of death just man mentioned. The is. phraseology of the beginning different and the so statute so different running of the beginning statute wrongful statute from death language limitations. used is of argument no benefit whatsoever. If familiarly in that is that case used are authorities wanted meaning of uphold by courts doctrine contend- contained in words hundreds, minority opinion ed for in may they be found statute opinion, highest that if the author of in decisions our federal believed Bratton, state courts. intended to say that Justice the time ran of the commis- from complained case the tort before us unlawful act he would have said sion December 1949. The committed but, instead, dates the time so suit was brought for whose child the date than rather suit 1951 and the was filed died March seven months October negligent less than later act. *21 sis plainly had survived fusing rights granted 1951. If the decedent legis- his minor- (without considering
his lative act. he, person, ity) any other would persist Shall the Court in its error until years the date of the com- had three from legislature takes affirmative damages. suit for to file mission the tort simple 24-102, adding amendment Sec. But, fifteen months after because he died Annotated, Mexico Statutes New committed, says our Court tort was words, something like the to wit: following gave cause wrongful death no statute for “Notwithstanding and un- the erroneous representative of the de- of action to the just decisions of the Court of New words, the of ac- ceased. In other Mexico the this section action mentioned in statute barred be- tion authorized 24-104, 24—101 Sections The cause of action for fore is created: Annotated, Mexico Statutes 1941 is intend- wrongful death before came into ex- died ed and declared to be a cause of ac- istence. tion unknown to the it ac- common law and quotation another case in the By crues on the death of decedent.” As if Court indicates that majority entirely error fault of the Court unjust it is legis- decision is then for the its let our us correct own mistake without the statute. change lature to With compulsion legislature. thoroughly disagree. suggestion I the lower dismissing The order of court the Court and not legis- fault is with be reversed. The cause the case should erroneously has lature. miscon- remanded with instructions to plain unambiguous should language strued passed legislature and' the same the docket for reinstate unjust rendered thereby decisions, has re- trial.