142 N.W. 664 | S.D. | 1913
This action is brought against O. PL and E. R-Richards and the city of Watertown for the recovery of damages resulting from the death of the plaintiff’s husband. The defendant city of Watertown, hereinafter -to be designated as the city, appeared separately and demurred to plaintiff’s complaint on the grounds: “(i) That there is a defect of parties plaintiff 5(2) that there is a defect of parties defendant; (3) that there are several . causes of action improperly united; (4) that the complaint does not state facts sufficient to constitute a cause of action; (5) that the plaintiff has no legal capacity to sue defendant; and (6) that the court has no jurisdiction of the subject of the action.” This demurrer was overruled by the order of the trial court, and the case is brought here upon an appeal by the city from this order. •
So far as the record before us shows, the defendants O. H. and E. R. Richards, hereinafter to be designated as the Richards, have made no appearance. In order to understand the questions presented by the demurrer, it will be necessary to set out the facts alleged in plaintiff’s complaint with greater detail than is ordinarily necessary.
It appears from the complaint, the truth of which is admitted by the demurrer: That on and for some time prior to the 20th day of July, 1907, plaintiff and one William D. Rowe were husband and wife, living in the city of Watertown. That at that time the Richards were the owners of a certain lot, or tract of ground, fronting on Kemp avenue, one of the main thoroughfares in the business part of the city, and that oh the date above mentioned they were engaged in the construction of a certain one-story, brick building upon said premises. That at that time the city was a municipal corporation, with complete control over all the streets and sidewalks in the city. That it had power to establish, and by ordinance had established, certain fire limits, within which limits it had power to designate the character of the buildings that should be erected and the thickness and 'strength of the walls to be used in the construction thereof That the city had a building inspector, whose duty it was to' inspect buildings in course of erection and to enforce, the city ordinance relative to the thickness of walls, strength of materials, etc. That the city had issued a permit to the Richards to erect the said building; that, while
'The complaint further alleged that at the time of the said injury plaintiff and her said husband had one child, a son, of tender age, and that plaintiff and said child were supported 'by and were dependent upon the said William 'D. Rowe for their support and maintenance, and that, by his death, they had been deprived of the ■said means of süpport and maintenance, and thereby suffered damage.
This presents a question' of some difficulty. It is conceded that this action can be maintained only by virtue of the statute. Therefore it must be prosecuted in the manner and under the conditions specified by the statute. It is contended by respondent, however, that the provision of this act, so far as it attempts to control the .procedure in this action, is unconstitutional and void, and therefore a compliance with the terms thereof is not required. The title of the act is as follows: “An act entitled an act concerning liability of cities and towns for personal injuries, and repealing all acts and parts of acts in conflict herewith.” It will be noted that the title of the act relates only to liability for “personal injuries,” while the act itself attempts to include liability for “personal injury or death.” The question for determination then becomes whether or not liability for personal injury also necessarily includes liability for death. Or, rather, whether or not the title pertaining to liability for personal injury is broad enough in its scope to include liability for death. After a careful consideration of the subject and an examination of the authorities relating thereto, we are forced to the conclusion that .there is a broad distinction between the two classes of liability, and that the title of the statute in question is not broad enough in its scope to include the liability or cause of action set up in plaintiff’s complaint. In the first place, the framers of the law themselves recognized the distinction; for, by the use of the term “or death” in the body of the act, they recognized that the term “personal injuries,” as used in the title and in the body of the act, was not broad enough to include liability for death. It further appears from an examination of the body of the law that its authors did not intend nor contemplate that the law should apply to liability for death;
“Section 1. Whenever the death of a .person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the corporation which, or the .person who, would have been liable, if death had not ensued, or the administrator or executor of the estate of such person as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such administrator or executor, the damages recovered shall be a valid claim against the estate of such deceased person.
“Sec. 3. Every such action shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the per*76 sonal representative of the deceased person; and in every action the jury may give such damages, not exeoeeding in any case ten thousand dollars ($10,000.00), as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought. Every such action shall be commenced within three years after the death of such deceased person. * * *”
It is the contention of appellant that this chapter repeals and takes the place of section 746 of 'the Revised Code of Civil Procedure. While, on the other hand, it is contended by the respondent that said chapter does not repeal section 746; that said section is still in full force and effect and authorizes the maintenance of this action just as it is brought by the plaintiff; that chapter 301 and section 746 do not relate to the same subject, and that there is no conflict between the provisions of the two acts. With this contention we a-re unable to agree. While it is not true, as claimed by appellant, that chapter 301 expressly repeals section 746, both acts do relate to the same subject, and the provisions of the two acts relating to that subject are so different as to be inconsistent with each other; and therefore, by implication, the later act repeals the earlier. Respondent’s contention is based upon the wording of the first part of section 1 of the act of 1909: “Whenever the death of a person shall be caused by wrongful act, * * * such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then * * * the person who would have been liable, if death had not ensued, * * * shall be liable to an action for damages, notwithstanding the death of the person injured.” It is contended that this language has reference to the cause of action that accrued in favor of the injured party before death, and that the effect of the act is merely to revive this right of action in the name of the personal representative of the injured party after his death. This contention is wrong. The language above quoted has reference to the negligent act that caused .the death; not the cause of action that resulted from the negligent act.
There is the same difference between these two subjects that there is between the subjects mentioned in chapter 90 of the Raws of 1907. One relates to the cause of action growing out of the “personal injury” in favor of the person injured; while the other
The fact that the wall did not project into the street nor upon the' sidewalk does not in any wise change the rule nor reduce the degree of care imposed upon the city to keep its streets and sidewalks in a reasonably safe condition. In Langan v. City of Atchison, 35 Kan. 318, 11 Pac. 38, 57 Am. Rep. 165, the plaintiff was injured by the falling of a billboard that blew over and struck him while passing along one of the sidewalks in the city. The billboard had been erected on private property adjacent to the sidewalk, and without permission from the city. The court held that the city was negligent in permitting the billboard, constructed as it was, to remain near enough to the sidewalk to injure a person passing along when it fell. In Kiley v. City of Kansas, 69 Mo. 102, 33 Am. Rep. 491, a wall, standing on private propery, adjacent to a city street, fell over and killed a child who- was standing some distance from the street. The wall was known to be in a dangerous condition, and the city had the power to declare the wall a nuisance and to demolish the same. The court held that, in permitting the wall to remain in its unsafe condition,, the city was
For the failure to -show that plaintiff has capacity to sue, the demurrer should have been sustained, and the order overruling the same is reversed.