Opinion
No. 2946
February 3, 1932.
APPEAL from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
W.M. Kearney and S.W. Robinson, for Appellant:
Thatcher Woodburn ( Thomas F. Ryan, of Counsel), for Respondents:
It is appellant's contention that the proviso in section 9195, N.C.L., merely sets forth one of the conditions which must be met if the proceeds of a judgment obtained for the wrongful death of a person are to be exempted from liability for the debts of the decedent and distributed as in said section provided, namely, that such action must be maintained by the personal representative. And, on the other hand, that if the action is brought by the heirs at law of the decedent, as may properly be done under section 8554, that the proceeds are liable for the debts of the decedent and are not necessarily distributed in accordance with the order of distribution set forth in section 9195.
Counsel are contending for a far-fetched rule of statutory construction when they seek to have the proviso applying solely to one section of a statute govern every other section relating to a like subject matter. The proviso in section 9195, by all rules of statutory construction, relates only to the matters immediately preceding the same within the section within which it is set forth, and said proviso in no way governs or relates to section 9554, under which this action was instituted.
An interpretation of these statute sections, together with the legal history thereof, is concisely set forth by the late Hon. Edward S. Farrington in the case of Perry v. Tonopah Mining Co., 13 F.2d 865. Appellant adopts the interpretation given to said sections by Judge Farrington in toto. See, also, Hartigan v. Southern Pac. R. Co. (Cal.), 24 P. 852.
Appellant contends that the ruling of the lower court refusing to permit appellant to examine the veniremen upon voir dire relative to any interest which they might have in insurance companies generally and in the insurance company carrying the policy upon the automobile which caused the death of the decedent was prejudicial to appellant, in view of the fact it prevented and would prevent appellant from securing a fair and impartial trial by jury, and that such an order as made and entered is contrary to all rules relating to trial by jury and, if permitted, would in effect nullify plaintiff's right to a trial by a fair and impartial jury. Wilson v. St. Joe Boom Co., 200 P. 884; Beeler et al. v. Butte London Copper Dev. Co., 110 P. at 530; Granruse v. Croxton Mng. Co., 113 N.W. 694; Penhansky v. Drake Realty Construction Co., 190 N.W. 268.
Appellant, as the widow and heir at law of Stafford C. Nordyke, lacked capacity to maintain an action for damages alleged to have been sustained by reason of his death; and the district court properly sustained respondents' special demurrer based upon this ground. In considering this point it must be remembered that at the common law an action would not lie for the recovery of damages alleged to have been sustained by reason of the wrongful death of another. Where this cause of action exists at all it is purely a creature of statute, and such statutes, being in derogation of the common law, are always strictly construed. Perry v. Tonopah Mining Co., 13 Fed. 2d 865.
The only cases which we have been able to find in which the court was compelled to face the situation created by such conflicting statutes are Kramer v. Market Street R.R. Co., 25 Cal. 434, and Perry v. Tonopah Mining Co., supra. In the first-named case the supreme court of California was quite emphatic and left no doubt as to its opinion and decision that the act of 1862 of that state was absolutely controlling over that section of the California practice act which apparently was the equivalent of our section 8553, and held flatly that an action to recover damages for the death of a minor child could not be brought by the parent in his capacity as heir, but had to be brought by and in the name of the personal representative.
Since there are no other decisions involving two such sets of statutes, we must turn to the rules of statutory construction. We believe that under all of these rules sections 9194 and 9195 must be given precedence over section 8554.
The bill of exceptions in this case shows that on the motion to limit voir dire examination of the jury, testimony was offered by the respondent Donald Maclean that the only insurance which he carried on the automobile involved was carried in the Occidental Indemnity Company; that Mr. Dearing, a representative of that company testified as to the names and addresses of its stockholders; that the list of stockholders of the company, as well as a list of the jurors was offered in evidence, and showed that no member of the jury venire was a stockholder in the company. The case was thus brought squarely within the reasoning of the supreme court of Oregon in the case of Putnam v. Pacific Monthly Co., 130 P. 986, and it is our contention that under such circumstances appellant's counsel would not be in good faith if he insisted on injecting the insurance element into this case through his questions to the prospective jurors.
OPINION
This is an action for damages instituted by the appellant, Claribel Nordyke. It is alleged that such damages were suffered by her by reason of the death of her husband, Stafford C. Nordyke, whose death was caused on February 2, 1929, by being struck and crushed by the automobile of the respondent Donald Maclean. It is alleged that at the time of the accident said automobile was being driven by respondent Margaret Pastrell, at the special instance and request of respondent Donald Maclean. The respondents interposed a special and general demurrer to the complaint. The special demurrer raised the objection of appellant's legal capacity to sue. The point of this objection is that an action such as this, for wrongful death, should have been brought by the personal representative of the deceased husband instead of his heir at law. The demurrers were argued and submitted to the court, Honorable L.O. Hawkins, District Judge, presiding, and were overruled. After issue had been joined on all matters raised in the pleadings, the case was set down for trial before a jury for March 19, 1930. Immediately preceding the convening of the court, and before the court called the case for trial, counsel for respondents interposed an oral motion, in chambers, for an order directing appellant's counsel to refrain from questioning any member of the venire on voir dire as to whether or not he was a stockholder in any insurance company carrying public liability in the State of Nevada, or as to whether or not he was an employee of such company, or interested in any insurance company. The motion was heard forthwith and the testimony of one Wm. N. Dearing, who claimed to be an employee of the Occidental Indemnity Company of California, which carried the insurance upon the car of Donald Maclean, was taken. He testified that said company would be obliged to pay any judgment rendered against the respondents herein. Thereupon the court entered an order prohibiting appellant from asking any of the veniremen upon their voir dire any questions relating to the possible interests which they might have in insurance companies. Appellant was thereupon given leave to file an amended complaint, which was forthwith filed. The court gave the respondents time within which to plead to the amended complaint, and dismissed the jury. Thereafter respondents interposed a demurrer to the amended complaint. The demurrer raised the question that the appellant did not have legal capacity to sue. The demurrer was argued and submitted to the court, Honorable George A. Bartlett, District Judge, presiding. Thereafter said trial judge entered an order on November 12, 1930, sustaining said demurrer and dismissing the amended complaint. The appeal has been taken from this order.
Appellant makes three contentions: (1) That appellant had the legal capacity to maintain the cause of action as the sole heir at law of Stafford C. Nordyke, the decedent. (2) That the lower court, Honorable George A. Bartlett, District Judge, presiding, in considering the questions raised by demurrer to appellant's amended complaint, was obliged to follow the law of the case as laid down by the decision of the same court upon the identical questions raised by the demurrer to appellant's original complaint, Honorable L.O. Hawkins, District Judge, presiding. (3) That the lower court erred in entering an order in the above matter preventing plaintiff from examining veniremen upon their voir dire concerning any possible interest which said veniremen might have had in insurance companies and in particular in the insurance company which carried the insurance upon the car of respondent Donald Maclean.
1, 2. Appellant grounds her contention that she has legal capacity to sue as the sole heir at law of her late husband, upon section 8554 of the Nevada Compiled Laws, which reads: "When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such other person. If such adult person have a guardian at the time of his death, only one action can be maintained for the injury to or death of such person, and such action may be brought by either the personal representatives of such adult person deceased for the benefit of his heirs, or by such guardian for the benefit of his heirs as provided in section 54. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."
Respondents concede that a surviving wife is an heir of her deceased husband, but contend that section 8554 has been superseded or repealed by the provisions of chapter 68 of the Nevada Compiled Laws (sections 9194, 9195). These provisions read:
Section 9194: "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 persons who, or the corporation 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 a felony."
Section 9195: "The proceeds of any judgment obtained in any action brought under the provisions of this chapter shall not be liable for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows: 1. If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then, equally to each, the grandchild or children taking by right of representation; if there be no husband or wife, but a child or children, or grandchild or children, then to such child or children and grandchild or children by right or representation; if there be no child or grandchild, then to a surviving father or mother; if there be no father or mother, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and, provided further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named."
We do not think the circumstances of these statutes are sufficient to sustain the contention of respondents that the repeal of section 8554 has been effected. There is no expression of such an intention in sections 9194 and 9195, and the circumstances are not strong enough to force the conclusion of repeal by implication. The late Judge Farrington, in considering these statutes in connection with the one permitting a parent to maintain an action for the wrongful death of a minor child in the case of Perry v. Tonopah Mining Co. (D.C.) 13 F.2d 865, reached the conclusion that our practice act confers a right of action upon the heirs or personal representatives for the death of a person not a minor. We do not think he reached a wrong conclusion in this regard. The right is expressly given in section 8554. While sections 9194 and 9195, the latter of which limits the right to a personal representative or representatives, covers the same subject matter on account of which the heirs of a deceased person are permitted to maintain an action in section 8554, there is little beyond this to warrant the conclusion that they were intended as a substitute for the latter. The presumption is against repeals by implication. State v. La Grave, 23 Nev. 25, 41 P. 1075, 1076, 62 Am. St. Rep. 764. In support of this rule recognized and applied in the foregoing case the court quoted as follows: "`Repeals by implication are not favored,' said Judge Field, speaking for the court, in Crosby v. Patch, 18 Cal. 438. `Such is the universal doctrine of the authorities. "Whenever two acts," says the supreme court of Pennsylvania, "can be made to stand together, it is the duty of a judge to give both of them full effect. Even where they are seemingly repugnant they must, if possible, have such a construction that one may not be a repeal of the other, unless the latter one contain negative words, or the intention to repeal is made manifest by some intelligible form of expression." Brown v. County Commissioners, 21 Pa. 42.'" See, also, Estate of David Walley, 11 Nev. 260; Abel v. Eggers, 36 Nev. 372, 136 P. 100.
3. More force would be given to respondents' contention if sections 9194 and 9195 constituted a later enactment than section 8554, but they were enacted in 1871, while section 8554 made its first appearance in our law in the Revised Laws of 1912. It is true that the statute of 1871 was amended at that time so as to include parents among the kindred entitled to the proceeds of any judgment for wrongful death and to give them preference over brothers and sisters when there were no surviving husband, wife, children, or grandchildren. This, however, could only serve to make the sections contemporaneous in enactment. If respondents' contention of repeal by implication were conceded, it would seem that the legislature had enacted section 8554 merely for the purpose of repealing it in the same act by amending a law which had been in effect ever since 1871. It would be too curious to believe that such was the intention. Under the circumstances the presumption against repeal by implication becomes especially strong. In 25 R.C.L., p. 930, it is said: "The presumption against implied repeals is especially strong where the provisions supposed to conflict were passed at nearly the same time."
The reason for such strong presumption is given in Lewis' Sutherland on Statutory Construction, vol. 1 (2d ed.), as follows: "The presumption is stronger against implied repeals where provisions supposed to conflict are in the same act or were passed at nearly the same time. In the first case it would manifestly be an inadvertence, for it is not supposable that the legislature would deliberately pass an act with conflicting intentions; in the other case the presumption rests on the improbability of a change of intention, or if such change had occurred, that the legislature would express it in a different act without an express repeal of the first." Section 268.
4. Stress is placed by respondents on the circumstances of the sections 9194 and 9195 having a later place in the Revision of 1912. They appear in said Revised Laws as sections 5647 and 5648. Emphasis is also given to the circumstance that these sections deal with the subject in a more minute and definite way. These considerations constitute legitimate indicii of intent; but standing alone are too slight to overcome the strong presumption against repeal in this case. Kramer v. Market Street Railroad Co., 25 Cal. 434, cited by respondents, is not in point. Sections 9194 and 9195 are broad enough to include sections in behalf of minors. Perry v. Tonopah Mining Co., supra; Pardini v. City of Reno, 50 Nev. 392, 263 P. 768. Yet the court in the former case did not regard section 8553 of the Nevada Compiled Laws permitting parents to sue for the wrongful death of a minor, as having been repealed by the former sections. The legislature of 1913 did not regard the latter section as having been repealed because it amended the section at that session. Stats. 1913, p. 28, c. 35, sec. 2. When two statutes are so repugnant that both cannot be executed, it is the rule that the latest in position will control. But in this case the statutes may well subsist together and we are unwilling to say that this was not the intention.
The criticism leveled at the complaint by respondents for charging reckless and wanton conduct upon which a claim for exemplary damages is founded, goes merely to a question of pleading. The allegation has no bearing upon the question of repeal. We conclude that sections 8554, 9194, and 9195 are all effective and that the demurrer to the complaint was improperly sustained. This conclusion makes it unnecessary to determine appellant's second contention as to the conclusiveness of Judge Hawkins' decision on the demurrer.
5. As to the third contention, we hold that the action of the court in entertaining respondents' motion and entering the order complained of was improper practice. The trial court was not authorized to hear evidence and determine the qualifications of jurors in advance of their examination on their voir dire. Counsel for respondents have not directed us to any precedent for such practice, and we know of none. The order was so far erroneous.
The order and judgment appealed from are reversed, and the case remanded to the trial court.