Swisher v. Atchison, Topeka & Santa Fe Railway Co.

The opinion of the .court was delivered by Graves, J.: The position of the plaintiff is that by the death of John W. Swisher a cause of action arose under the laws of New Mexico in favor of the surviving parents of the deceased; that this cause of action was complete in itself, and depended solely upon the [100] fact that John W. Swisher lost his life by the negligent act of the defendant. It is further claimed that this cause of action should be regarded as a right which may be enforced in New Mexico or elsewhere, the same as the collection of a valid unpaid promissory note which the deceased might have held at the time of his death would be enforced. The statutory provisions relating to the service of notices and other preliminary steps to be taken before bringing suit to enforce the right are regarded by the plaintiff as mere matters of procedure, which inhere in the remedy but do not affect the right of action; that all such matters, being of the remedy, are governed by the lex fori and are independent of the lex loci. He insists that New Mexico cannot create a complete cause of action and then defeat its enforcement in Kansas by mere matters of procedure, which can have no extra-territorial force. He claims to be fully sustained in this contention by section 1 of chapter 325 of the Laws of 1905, which reads: “Whenever a cause of action has accrued under or by virtue of the laws of any other state or territory, such cause of action may be sued upon in any of the courts of this state, by the person or persons who are authorized to bring and maintain an action thereon in the state or territory where the same arose, provided-one or more of the parties entitled to 'the proceeds of said action are at the time of beginning said action residents of the state of Kansas.” On the other hand, the defendant insists that the provisions of the amendatory act of 1903 must be construed as a part of the former statute, and that the two statutes taken together constitute the law which gives the cause of action; that no such right existed at common law, and none exists in New Mexico except as created by this statute, and it must therefore be taken with all the conditions and limitations attached thereto. It further insists that the notice required by section 1 of the act of 1903 is not a matter of procedure, but an essential part of the right given, and is expressly made [101] a condition precedent to its enjoyment. This is said to be plainly indicated by the last clause of the section, which reads: “It being hereby expressly provided and understood .that such right of action is given only on the understanding that the foregoing conditions precedent are made a part of the law under which [a] right to recover can exist for such injuries, except as herein otherwise provided.” The contention of the defendant seems to be clearly expressed in the statute, and abundantly sustained by authority. In the case of Dennis v. Railroad Company, 70 S. C. 254, 49 S. E. 869, 106 Am. St. Rep. 746, the deceased was killed in the state of North Carolina, where the statute giving the right of action required suit to be commenced by the next of kin within one year after the death of the decedent. Action was brought in the state of South Carolina, where the limitation for such action was two years. The action was commenced within two years, but more than one year after the deceased died. It was there contended that the time fixed within which the action should be commenced was a mere statute of limitation, which, being purely of the remedy, was controlled by the lex fori, which was two years, and therefore the action was brought in time. The court held, however, that the one year named in the statute giving the right of action was a part thereof and must control wherever the right might be enforced. In the case of Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, it was said: “It is well settled that where by statute a right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right, and will control, no matter in what forum the action is brought.” (Page 185.) The cases upon this subject are collected and cited in Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, 59 [102] L. R. A. 704. In Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891, the court said: “The plaintiff’s right to maintain this suit is not greater than the legislature intended it should be. The language of the special provisions applicable leave no room to doubt that the right and the correlative liability thereby established were made conditional upon the bringing of the suit ‘at any time within two years after the death of the deceased party, and not afterward.’ The cause of action is conditional. If the condition is not observed, the parties stand with respect to the wrongful act as though the statute had not been enacted. ‘It must be evident that, as this action is brought under a special law and is maintainable solely by its authority, the limitation of time is so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all.’ ” (Page 165.) It does not seem reasonable that a cause of action created by the law of one state should be materially enlarged when the beneficiary moves across the state line and appeals to the courts of another state to enforce his imported right. The rule of state comity does not contemplate such a result. We think that an action in this state for a wrongful death occasioned in another state or térritory is encumbered with all the limitations and burdens which may have been imposed by the statutes of the state where the right of action was created. In this case the notice provided by section 1 of the act of 1903 is an essential part of the cause of action, and until such notice is given no cause or right of action exists, either in New Mexico or elsewhere. The ruling of the district court on the demurrer was therefore correct, and its judgment is affirmed.