Sheets v. Graco, Inc. ( 1980 )

ERICKSTAD, Chief Justice.

This is an appeal from a summary judgment granted in favor of the defendants on the ground the plaintiff’s claim is barred by the statute of limitations. We affirm.

A wrongful death action was brought by the plaintiff,. Leona Sheets, the surviving wife of the late Harold T. Sheets. The incident which resulted in Harold’s death occurred on August 2, 1975, while he was spray painting a farm building near Stanley, North Dakota. While applying paint to the barn, it is alleged that the paint sprayer discharged injecting paint into Harold’s body. As a result of this mishap, he died on September 14, 1975.

The defendants in this action, Graco, Inc., Farmers Union Central Exchange, and Farmers Union Oil Company of Powers Lake, North Dakota [hereinafter referred to collectively as Graco], are corporations engaged in the manufacture and sale of the paint and paint spraying equipment used by Harold at the time the accident occurred in August of 1975.

The present action was commenced by service of a summons and complaint on July 20, 1979, nearly four years after Harold’s death. Leona sought damages for pecuniary loss she suffered as a result of her husband’s death, including loss of property, loss of support, and loss of consortium. Her action against each of the corporations named as defendants in this lawsuit is based upon claims of negligence, strict liability, and breach of implied and expressed warranties.

Motions for summary judgment of dismissal of the complaint were filed by each of the three corporations in August of 1979, and the motions were consolidated for hearing. The ground for each of the motions was that the wrongful death action was barred by the two-year statute of limitations as set forth in Section 28-01-18(4) of the North Dakota Century Code. A hearing on the motions for summary judgment was held on October 2,1979, in Burke County District Court, Northwest Judicial District. The trial court determined that the action was barred by the statute of limitations, and summary judgment was entered on October 5, 1979. Leona appeals to this court from that judgment.

Section 32-21-01 of the North Dakota Century Code is our wrongful death statute and it provides as follows:

“32-21-01. When action for death by wrongful act maintainable —Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tort-feasor, and although the death shall have been caused under such circumstances as- amount in law to felony.”

At common law there was no right of recovery for the wrongful or negligent injury of another which caused his death. Harshman v. Northern Pac. Ry. Co., 14 N.D. 69, 103 N.W. 412 (1905). Although the wrongful death of another involves pecuniary loss to the person seeking compensation, the right to bring such an action is purely statutory, and the statutory provisions upon which a wrongful death action can be maintained are contained in Chapter 32-21 of the North Dakota Century Code. Armstrong v. Miller, 200 N.W.2d, 282 (N.D.1972).

The wrongful death statute “is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased . .” Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 41, 121 N.W. 70, 71 (1909); see Section 32-21-03, N.D.C.C.

The amount recovered inures to the exclusive benefit of the deceased’s heirs, and said amount shall not be liable for the debts of the deceased. Section 32-21-04, N.D. C.C.

There has never been a self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C. However, Section 28-01-18, N.D.C.C., provides in pertinent part:

“28-01-18. Actions having two-year limitations — ‘The following actions must be commenced within two years after the cause of action has accrued:

# * * * # *

4. An action for injuries done to the person of another, when death ensues from such injuries, and the cause of action shall be deemed to have accrued at the time of the death of the party injured.”

Leona contends that Section 28-01-18(4), N.D.C.C., is not applicable in the case at bar because the pertinent provisions of that subsection only refer to actions “for injuries done to the person of another, when death ensues from such injuries . . . .” She argues that the present action is one for pecuniary damages she has suffered as a result of her husband’s wrongful death, brought pursuant to the Wrongful Death Act under Section 32-21-01 of the North Dakota Century Code, and that Section 32-21-01 contains no express limitation for commencement of an action brought pursuant thereto. Leona’s contention is that the present action is based upon claims against Graco of negligence, strict liability, and breach of warranty, and, therefore, in the absence of any express limitations period under the Wrongful Death Act, the applicable statute of limitations is six years. See Section 28-01-16(2), N.D.C.C.¹ She argues that, because the present action was filed within four years of Harold’s death, summary judgment was improperly granted.

Generally, where there are statutory provisions which provide for a special statute of limitations in wrongful death actions, such a limitation controls regardless of the tort, contract, or breach of warranty aspects of the case. Rogers v. Smith Kline & French Laboratories, 5 Ariz.App. 553, 429 P.2d 4 (1967); 22 Am.Jur.2d, Death § 35 (1965); 25A C.J.S. Death § 53(a) (1966). The problem in the instant case is that there is no self-contained statute of limitations within the wrongful death provisions of Chapter 32-21, N.D.C.C.

Literally, Section 28-01-18(4), N.D. C.C., provides a two-year statute of limitations for “an action for injuries done to the person of another, when death ensues from such injuries . . . The enactment of the Wrongful Death Act was a response to the failure of the common law to provide a remedy for wrongful death. The Wrongful Death Act compensates the survivors for losses they have sustained by reason of the wrongful killing of the deceased. Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972). This is to be distinguished from a survival action, which is a separate and distinct cause of action. The basis for an action under our wrongful death provisions is the existence of an injury to the deceased. A wrongful death action, like a survival action, is dependent upon the injuries sustained by the deceased, and ensues from the injuries which caused his death.

Section 28-01-18(4) further provides that “the cause of action [referred to therein] shall be deemed to have accrued at the time of the death of the party injured.” It is necessary to distinguish between wrongful death actions and survival actions to better understand the importance of this pertinent provision.

Conceptually, survival actions are quite different from wrongful death actions. Each provides a separate and distinct remedy for a different kind of loss. Wrongful death actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of a wrongful killing. Dependent upon the specific statutory language, losses recoverable by survivors in wrongful death actions often include the prospective loss of earnings and contribution; prospective expenses; loss of services; loss of companionship, comfort, and consortium; and mental anguish and grief. See 1 S. Speiser, Recovery for Wrongful Death 2d, Ch. 3 (1975). Survival statutes, on the other hand, are remedial in nature, and are intended to permit recovery by the representatives of the deceased for damages the deceased could have recovered had he lived. Section 28-01-26, N.D.C.C.;² see Section 28-01-26.1, N.D.C.C. A survival action merely continues in existence an injured person’s claim after death as an asset of his estate, while a wrongful death action is an entirely new cause of action for the benefit of those persons who bear a close relationship to the deceased and who have suffered injury as a result of his wrongful death. Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 121 N.W. 70 (1909); 2 S. Speiser, Recovery for Wrongful Death 2d § 14:1 (1975); see Section 32-21-03, N.D.C.C.

“The elements of damages recoverable under survival statutes are generally as follows: conscious pain and suffering; medical expenses; funeral and burial expenses; and loss of earnings, usually from the time of injury to the time of death. In some jurisdictions, punitive damages, mental anguish, or any outrage to the feelings of the injured person, may also be recovered.” (Emphasis added.) 2 S. Speiser, Recovery for Wrongful Death 2d § 14:6 (1975).

Standing alone, we believe that the words “[a]n action for injuries done to the person of another, when death ensues from such injuries,” as found in Section 28-01-18(4), could reasonably be interpreted to apply solely to survival actions. However, when one considers that the cause of action “shall be deemed to have accrued at the time of the death of the party injured,” Section 28-01-18(4), then it becomes clear that the two-year limitation provision is to apply to wrongful death actions. The reason is that survival actions accrue, or come into existence as a legally enforceable right, not at the time of the death of the injured party, but at the time the deceased was first injured. As previously established, a survival action is merely a continuation of a claim the deceased would have been entitled to bring had he not died. The representatives of the deceased merely step into his shoes and continue the cause of action on behalf of the deceased’s estate. See Marsden v. O’Callaghan, 77 N.W.2d 531 (N.D.1956). A survival action actually accrues at the time of injury, and, if the person injured later dies, the action is continued by his representatives in the form of a survival action. A wrongful death action, however, is an entirely new and independent cause of action that can only accrue at the time of the wrongful death, based upon the death itself. Such actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of the wrongful death.

We recognize that words and phrases in a statute are to be construed according to the context and rules of grammar and the approved usage of language. Section 1-02-03, N.D.C.C.; Falk v. Frandsen, 137 N.W.2d 228 (N.D.1965). Consideration must be given to the ordinary sense in which the words are used, the context in which they are placed, and the background for the enactment as far as that can be ascertained from the whole act. Harding v. City of Dickinson, 76 N.D. 71, 33 N.W.2d 626 (1948); see Section 1-02-02, N.D.C.C. Meaning should be given to every word, clause, and sentence in the statute. Brenna v. Hjelle, 161 N.W.2d 356 (N.D.1968). The object is to ascertain and give effect to the intent of the Legislature. State v. Unterseher, 289 N.W.2d 201 (N.D.1980).

We believe that the words, clauses, and sentences of Section 28-01-18(4), when viewed as a whole, indicate that the two-year limitation period contained therein applies to wrongful death actions. Wrongful death actions are actions for injuries done to the person of another from which death has ensued, and wrongful death actions accrue at the time of the death of the party injured. Therefore, such actions fall within the two-year limitation provision of Section 28-01-18(4). We further believe that this construction gives effect to the legislative intent as disclosed by the language of the enactment, and unveiled by delving into the history of the controlling statutes.

A cause of action for wrongful death was first created by statute in 1895, as there was no such right of recovery under the common law. R. C. 1895, § 5974.³ The language of the wrongful death statute has remained virtually unchanged since 1895, and, since its enactment, there has never been a self-contained statute of limitations within its provisions.

Also enacted by the Legislature in 1895 was Section '5203(4),⁴ which is our present two-year statute of limitations found in Section 28-01-18(4), the language of which has also remained virtually unchanged since 1895.

We note that under our statute pertaining to limitations for survival actions, “[i]f a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one yean from his death.” (Emphasis added.) Section 28-01-26, N.D.C.C. Section 28-01-26 was enacted in 1877,⁵ and the one-year period referred to therein was present at that time. Apparently the Legislature intended that the predecessor of Section 28-01-18(4) [R. C. 1895 § 5203(4)] would cover wrongful death actions, while the predecessor of Section 28-01-26 [C.Civ.P. 1877, § 65] would cover survival actions,' for to reach a contrary conclusion would render the one-year period under Section 28-01-26 superfluous and applicable to nothing. In further support of this construction, and indicative of the legislative intent, is the fact that both the Wrongful Death Act and the two-year statute of limitations period found in Section 28-01-18(4) were enacted the same year, 1895.

In Van Ornum v. Otter Tail Power Company, 210 N.W.2d 207 (N.D.1973), we held that a survival action brought by the personal representative of the deceased to recover for the deceased’s pain and suffering, as well as punitive damages, was subject to the two-year statute of limitations period set forth in Section 28-01-18(4), N.D.C.C. Id. at 209, 210. Whether or not we would adhere to that opinion were the issue raised in the future, or whether or not, in light of the study and research necessitated by this opinion, we would hold that such a survival action was subject to the one-year limitation provided for in Section 28-01-26, N.D. C.C., we need not decide today. Had Section 28-01-26, N.D.C.C., been applied in Van Ornum, that would not have changed the result. The issue of whether or not Section 28-01-18(4) also applied to wrongful death actions as we have defined such actions today was not before this court in Van Ornum.

This court has never been confronted with the issue presented in the case at bar, i. e., which statute of limitations is applicable to wrongful death actions in North Dakota. We have, however, intimated, or in dictum said, that the appropriate period is the two-year limitation under Section 28-01-18(4), N.D.C.C. See Hubbard v. Libi, 229 N.W.2d 82 (N.D.1975); Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973); Van Ornum v. Otter Tail Power Company, 210 N.W.2d 207 (N.D.1973).

The solution for the future might be legislative action incorporating a specific limitation within the wrongful death statute, Chapter 32-21, N.D.C.C.⁶

In view of the foregoing, we conclude that Section 28-01-18(4), N.D.C.C., is directed to wrongful death actions. Summary judgment was properly granted, and we accordingly affirm.

VANDE WALLE, PEDERSON and PAULSON, JJ., concur.

1 . “28-01-16. Actions having six-year limitations — The following actions must be commenced within six years after the cause of action has accrued:

2. An action upon a liability created by statute, other than a penalty or forfeiture, when not otherwise expressly provided.” § 28-01-16(2), N.D.C.C.

2 . “28-01-26. Limitation in case of death — If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death. . . . ” § 28-01-26, N.D.C.C.

3 . “§ 5974. When action for maintainable. Whenever the death of a person shall be caused by a 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 person who, or the corporation or company which, would have been liable if death had not ensued, 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 felony.” R. C. 1895, § 5974.

4 . Section 5203(4) of the Code of Civil Procedure, 1895, provides for a two-year statute of limitations for the commencement of:

“4. An action for injuries done to the person of another, when death ensues from such inju-ríes; and the cause of action shall be deemed to have accrued at the time of the death of the party injured.” R. C. 1895, § 5203(4).

5 . “§ 65. Death.] If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” C.Civ.P. 1877, § 65.

6 . Our research has revealed that thirty-four states have built-in or self-contained statutes of limitation within the provisions of their respective wrongful death acts. 2 S. Speiser, Recovery for Wrongful Death 2d, Appendix A (1975).