DocketNumber: No. 686.
Judges: Higgins
Filed Date: 3/22/1917
Status: Precedential
Modified Date: 10/19/2024
This suit was brought by the surviving wife, children and parents of Harry Slate, deceased, against the city of Ft. Worth, a municipal corporation, to recover damages on account of injuries causing the death of said Harry Slate. It was alleged that Harry Slate was an employé of the city, and upon April 19, 1913, sustained certain injuries caused by the negligence of the defendant in consequence whereof he died on March 1, 1915. The only issue presented by the record is whether or not a general demurrer to the petition was properly sustained.
At the time of the injury to deceased a cause of action for damages on account of injuries causing death did not lie against a municipal corporation under the second subdivision of article 4694, R.S. Elliott v. City of Brownwood,
Appellants contend that the amended statute gave them a cause of action which under subdivision 7, art. 5687, accrued to them at the time of the death of the injured party. Article 5687 is purely a statute of limitation, and not a statute creating a cause of action. Although the right of action does not accrue to the beneficiaries named in article 4694 unless death ensues, the wrong for which the action is allowed is the injury which causes the death. The foundation of the action is the act or omission which causes the injury. De Harn v. Railway Co.,
In the absence of constitutional restrictions, it is a sound rule of construction that a statute shall have only a prospective operation unless its terms clearly show a legislative intention that it shall have a retroactive effect. 2 Lewis' Sutherland, Stat. Const. (2d Ed.) § 643; Mellinger v. City of Houston,
"A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions * * * already passed, is to be deemed retrospective or retroactive. * * * No new ground for the support of an existing action ought to be created by legislative enactment, nor any legal bar which goes to deprive a party of his defense."
Justice Brown, in the case of Fristoe v. Blum,
"By analogy retrospection, within the meaning of the Constitution, would be to give a right where none before existed, and, by relation back, to give the party the benefit of it; if, however, the right already existed, it would be in the power of the Legislature to devise and provide a remedy."
Justice Story, in the case of Society, etc., v. Wheeler, 2 Gall. 105, 139, Fed. Cas. No. 13,156, said:
"Upon principle every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective."
The cause of action which now exists against a municipal corporation by virtue of amended article 4694 arises exclusively by virtue of this statute. A right of action to recover damages on account of injuries causing death did not exist under the common law.
If it should be held that amended article 4694 gives to plaintiffs the right to recover damages on account of the injuries inflicted previous to the amendment, such holding would clearly impose a new obligation upon defendant and attach a new liability in respect to a past transaction. To such extent the statute would be retroactive and invalid. Section
"This statute, it is contended, is remedial, and remedial statutes may be retroactive. It is remedial, no doubt, in that enlarged sense of that term, where it is employed to designate laws made to supply defects in, or pare away hardships of, the common law, but not remedial in the sense of providing a more appropriate remedy than the law before afforded, to enforce an existing right or obligation. The statute under consideration provided no new method of procedure; it simply imposed upon Hamilton county an obligation towards these plaintiffs in error that did not attach to the transaction when it occurred. In attempting to accomplish this result the Legislature transcended its constitutional powers."
This is in accord with Mr. Sutherland's definition of remedial statutes. He says:
They are "those enacted to afford a remedy, or to improve and facilitate remedies existing for the enforcement of rights and the redress of injuries, and also those intended for the correction of defects, mistakes, and omissions in the civil institutions and administrative policy of the state." 2 Lewis' Sutherland, Stat. Const. (2d Ed.) § 336.
In support of their contention that the statutes are remedial appellants refer to Railway Co. v. Rogers,
Affirmed.
Elliott v. City of Brownwood ( 1914 )
Ritz v. City of Austin ( 1892 )
Fristoe v. Leon & H. Blum ( 1898 )
De Harn v. the Mexican National Ry. Co. ( 1893 )
City of Marshall v. McAllister ( 1898 )
Houston & Texas Central Railway Co. v. Rogers ( 1897 )
Fleming v. the Texas Loan Agency ( 1894 )
Kelly v. Republic Building & Loan Ass'n ( 1930 )
City of Mason v. West Texas Utilities Co. ( 1951 )
Untitled Texas Attorney General Opinion ( 1967 )
Untitled Texas Attorney General Opinion ( 1963 )
Robertson v. Estate of McKnight ( 1979 )
Miller v. City of Fort Worth ( 1995 )