*1 Judgment or order.— “14-17—14. SHEETS, Appellant, Plaintiff and
Leona the amount to be determining “5. of the support parent paid GRACO, INC., Corporation; a Minnesota during which the and the child Exchange, n Farmers Unio Central owed, court enforc- support is duty of association; cooperative Minnesota support shall con- obligation of ing the Company of Powers Farmers Oil Union facts, including: all relevant sider Lake, Dakota, North Dakota North child; The needs of the a. association, cooperative Defendants living circum- The standard of b. Appellees. parents; stances Civ. No.. means of the The relative financial c. parents; Dakota. Supreme Court of North earning ability parents; The d. child capacity e. The need April education, higher educa- including tion; child; age
f. resources and
g. financial child;
earning ability of the parents responsibility
h. others; and support The value of services contributed
i. parent.
the custodial factors foregoing
It is our view considered the court
should be matters of child
proceeding to determine proceeding not such
support, whether or Parentage under the Uniform
commenced
Act. The trial court’s determination parent for the paid by to be
amount
support of the child should be based factors, not limit- including, but
all relevant to, 14-17- set forth in §
ed those factors Unterseher,
14(5), N.D.C.C. State factors, Those ability, financial
addition to the father’s to consider
important criteria for the court obligation, if determining support Krueger.
any, impose upon pro- remand for further
We reverse and opinion.
ceedings consistent with this PEDERSON,
ERICKSTAD, J., and C. SAND, JJ., concur.
VANDE WALLE and
Letnes, Fiedler, Forks, Marshall & Grand plaintiff appellant; argued F. Marshall, John Forks. Grand McGee, Hankla, Wheeler, Backes & Mi- Graco, not, Inc., appellee, for defendant and corporation; argued by a Minnesota Orlin Backes, W. Minot. Wahl, Neff, Williston,
Bjella, Rathert & appellee, for defendant and Farmers Union Exchange, cooperative Central Minnesota association; Jacobson, argued by Paul W. Williston. .Minot,
Pringle Herigstad,
defend-
appellee,
ant and
Farmers Union Oil Com-
Lake,
Dakota,
pany of
Powers
North
association;
cooperative
Dakota
North
ar-
gued
Mahoney,
Mitchell
Minot.
Brantner,
Vogel Vogel,
Kelly,
Mart R.
Knutson,
Bye, Fargo,
Weir &
amicus curiae
support
appellant.
plaintiff
ERICKSTAD, Chief Justice.
summary
appeal
judg-
This is
granted
ment
in favor
the defendants on
ground
plaintiff’s
claim is barred
affirm.
the statute of limitations. We
brought
A
death action was
Sheets,
plaintiff,.
surviving
Leona
wife of
T.
the late Harold
Sheets. The
incident which resulted in Harold’s death
2, 1975,
August
he
occurred on
while
spray painting
building
a farm
near Stan-
paint
North
ley,
applying
Dakota. While
barn,
alleged
paint sprayer
it is
thereof,
injecting paint
into Harold’s
recover
discharged
respect
who,
mishap,
this
he died
and in
As a result of
case
body.
which,
corporation
or company
September
have been liable if
had not
action, Graco, Inc.,
in this
The defendants
damages,
shall be liable to an action for
Exchange,
Union Central
Farmers
notwithstanding the
death of the
*3
Company of Powers
Union Oil
Farmers
tort-feasor,
or of the
and al-
Lake,
referred
Dakota
North
[hereinafter
though the death
been caused
shall have
corporations
collectively Graco],
such
in
circumstances as- amount
and sale of the
engaged in the manufacture
felony.”
law to
paint
spraying equipment
by
used
paint
and
right
At common law
was no
of re
occurred in
Harold at the time
accident
wrongful
covery
negligent injury
August of 1975.
of another
caused his death. Harsh
by
action
present
was commenced
Co.,
Ry.
man v.
Pac.
14 N.D.
Northern
July
on
complaint
service of a summons and
wrong
Although
I concur in most (3) malpractice came opinion relating to stated in Chief Justice Erickstad’s Subsection to, respect- case law referred but I being Chapter and the of the 1893 through into employed rationale fully dissent from the (4) first made its Laws. Subsection Session con- reaching the conclusion and from the Code of appearance the Revised clusion itself. gave no but the source indication being into to when came did not
An being. provided It it came into manner purely law and is exist under common follows; Harshman v. Northern creature statute. *7 conversation, thirty-four or 5. An action for criminal research has revealed that 6. Our rights any of of or or self-contained statutes for other states built-in contract, respec- another, provisions arising not limitation within the of their not on enumerated; wrongful Speiser, acts. 2 S. Recov- tive death hereinafter 2d, Appendix ery Wrongful ground A for on of An action for relief 6. fraud, solely heretofore were cases which (Am’d 1849) 1.“§ 91. chancery; cognizable of by the court years: six of such cases not “Within action in contract, obligation, accrued, discovery upon a 1. An action until the deemed to have liability, implied; excepting express (cid:127)by aggrieved party or or constitut- of facts ninety; ing those mentioned in section fraud.” by upon liability An a created 2. action forfeiture; statute, penalty years: “337. Within four other than a or prop- trespass upon An real action contract, obligation any or “An action for erty; any liability, upon in writ- found instrument injur- taking, detaining or 4. An action for ing State.” executed in this chattels, including ing any goods or specific recovery personal proper- of ty; 70 of subdivision 3 of section 340 of the Code
“An action for special a ensues Civil Procedure. That section is person of when death which controlling of statute the time within injuries; and the cause ac- any covering injury may deemed to have accrued at action tion shall be commenced, injured.” prevails gen- over the the time of death applicable eral statute actions based was removed later semicolon Sometime by Code Civ. ‘liability created statute’. put place. and a comma was in its 338, 1.” Proc. sec. subd. states it came derivation Code court was reasoning California 93;3 (N.Y.) Code, from Har- Wait’s Klingebiel followed in Lockheed Aircraft Practice, (Cal.) ston’s 340.4 (1971) Corporation, F.Supp. U.S. A review of the statutes of the states California, District Court North District of adopted law was not very from which our which was affirmed 494 F.2d helpful provisions because consid- (9th 1947). any Cir. I did make elabo not part eration were not of the law of the has effort find out if other state rate states which our statutes were mod- question. addressed to the same itself eled. is a review the New York Neither stat- wrongful North Dakota death very helpful statutes because New York ute, does contain a limita- ultimately provided death must be tion of time in which action statute contained own statute which its commenced, go we theil therefore must limitations, and, matter, for that Califor- statute in Ch. 28- of limitations found nia’s also contains death statute NDCC, period to determine its own limitations. applies death However, the courts in two instances left herein, As out pointed action. earlier impression pertain- action is one created ing liability action based on a an created statute and as such meets the apply statute would were it not for the provides: which fact the California n “The following actions must be com- statute, (3) subdivision Code years menced within six the cause Procedure, special of Civil was a statute of action has accrued: and contained its own of limitation upon liability 2. An created controlled, general which rather than a than for- penalty statute other or statute, (1) subdivision Code of feiture, expressly when not otherwise Procedure, setting Civil forth the time limi- provided.” statutory tation of actions based on a liabil- ity. Casualty Surety Co. Aetna liability liability A statute is Pacific & Electric 41 Cal.2d Gas the stat- except which would not exist (1953), 264 P.2d the court said: Phrases, page ute. See 25 Words Vol. party plain- seq., part.
“No who et pocket matter be the A tiff, [wrongful the cause of action within this action is one falls express is one within the terms of definition. action] 3. “§ 93. 2. An undertaking in a criminal for a forfei- years: “Within two State; people libel, slander, assault, ture this 1. An *8 libel, assault, slander, imprisonment; 3. An for battery, or false seduction; statute, battery, imprisonment false or An action a for a forfei- against penalty people 4. An a other ture to the sheriff or or of this State.” escape prisoner officer for the of a arrested year:
4. “340. Within one
imprisoned
process;
or
on civil
1. An
against municipal corpora-
5. An
forfeiture,
given
or
the
to
action is
damages
injuries
property
tion for
or
to
individual,
State,
or to an
the
individual and
by
caused
a mob or riot.”
except
pre-
imposing when the statute
limitation;
scribes a different
28-01-18(4)
injuries
relates
the
provision
have some
to
sus
§
other
which
The
the
died
person who
from such
found in
tained
application
§
is
injuries
of
and that the cause
action sur
NDCC:
injured person
vives
and that the
the
having two-year limitations
“Actions
to
at
of action is deemed
have accrued
following
must be com-
actions
—The
person
time
death of the
rather
of
years after the cause
within two
than
at
time
the infliction
accrued:
action has
injuries.
concept,
Under this
the action
to
injuries
done
An action
28-01-18(4)
separate
is
and
dis
§
when death ensues
person
tinct
the action for
action from
injuries,
the cause of
and
32-21. As
in Chief
death under Ch.
stated
to have accrued
be deemed
action shall
opinion,
Justice Erickstad’-s
the death of the
time of
s
compensates
act
the survivor for
injured.” [Emphasis added.]
they have sustained
reason of the
losses
interesting question:
This raises
wrongful killing
the deceased. Arm
applies
statutory
Which
Miller,
v:
strong
N.W.2d
prin-
death? The
to an action for
clearly supports
This
the conclusion that the
ciple
relating
interpretation
law.
28-01-18(4)
provisions
merely provide
of §
of statutes that
construction
injuries done
that the cause of action for
clause,
word,
given
and sentence must be
injuries
person
who died from such
applies here. With that
consideration
at the
deemed to have accrued
time
mind,
is exam-
principle
§
If
had
death.
not
ined.
governed by
the ordi
limitations would
First,
applies
noted that it
must be
injuries.
nary
statute of limitations
injuries
person
done to the
such
injuries
generally
covered would be
“injuries”
here does not
another.
term
pain
suffering,
expenses,
medical
concept of
term
embrace the broad
but
injured;
earnings
loss
to the individual
injuries which caused the
is limited to the
death statute ad
whereas
language
This
evidenced from the
itself
losses sustained
the ben
dresses
injuries”.
ensues from such
“when death
eficiaries,
pain
does not include
term,
injuries
injuries,” refers to
“such
expenses, etc.
suffering, medical
essence,
person
another.
agree
I cannot
that this court intimated
(4)
28-01-18 refers to ac
subsection
of §
peri
appropriate
or
said that the
in dictum
injuries
the death
which result in
tions
two-year limitation under
28-01-
od is a
§
person injured.
comparing
After
Libi,
18(4)
v.
(N.D.1973), quoted Legislature the court from also believe the remove Adams Association, making appropri- Missouri Minerals all Little doubts (N.D.1966), wherein said: prac- N.W.2d amendment for the benefit ate ticing exists as to substantial doubt bar. “Where appli- two statutes
which of limitation
cable, longer period applied.” will be be- was not mere dictum
This comment syllabus, appeared in the which required pursuant to the Constitu-
was still concept that time. Under this
tion at NDCC,
rationale, applies 28-01-16(2), § wrongful death statute. BECKER, behalf of herself Elizabeth 28-01-18(4) that argument if did § children, Becker and and her James pertain to not Becker, Appellee, Darlene Plaintiff been no need for its enactment would have same matter would be subject because the convincing in 28-01-26 is neither covered § Doubek, Esther Walter DOUBEK and repeatedly seen persuasive. nor We have Appellants. Defendants and Legislature provided has where Civ. No. 9709. pro- general way in a and then something similar or related matter vided for a North Dakota. Supreme Court of manner, gave of course specific more specific pre- April that rise to the rule the more general, event there vails over the argument were valid conflict. If the need for
there would been no
enactment of because the §
subject already was covered matter However, is, 28-01-26. as it .§ types
pertains only to all relating to an which caused
those
death, 28-01-18(4) is limited whereas
injuries from which death ensues.
Furthermore, it would seem reasonable logical Legislature if were provide special
truly concerned to wrong- applied to
statute of limitations that was
ful death actions the time it enacted Legislature provided would have within Teevens, Minot, Montgomery, Johnson & than enact is now 28-01- act rather argued by plaintiff appellee; Bruce NDCC, 18(4), which makes no mention of Montgomery, Minot. applied death act and can be Anderson, Dobrovolny, Minot, Tossett & only by straining, death act argued by appellants; for defendants and where the especially Dobrovolny, Collin Minot. 28- already covered in what is now §
01-16(2), NDCC. SAND, Justice. though
Even I am 28- convinced NDCC, appeal County the Pierce 01-16(2), This is rather than § NDCC, denying defendants- applies death stat- District Court’s order
