Batchoff v. Butte Pacific Copper Co.

MR. JUSTICE REYNOLDS delivered the opinion of the court. This action was brought by D. A. Batchoff, as administrator of the estate of Dimitre Stoyeoff Gancheff, deceased, to recover damages for the death of the deceased, alleged to have been caused by the defective condition of a certain mining shaft due to negligence of defendants. To the amended complaint defendants filed demurrer, which demurrer was overruled on the second day of September, 1916. In the order overruling the demurrer, defendants- were granted to and including the first day of October, 1916, within which to serve and file answer. Neither defendant, nor either of their attorneys, was present in court at the time of the entry of the order overruling the demurrer, nor was any notice served upon them, or either of them, by the attorneys for plaintiff. On the second day of September, 1916, the clerk mailed to attorneys for defendants a postal card advising them of the order and of the time within which they were required to an — 182 — swer. The attorneys for defendants deny having received any such notice. On the third day of October, no answer having been filed, default was entered against defendants. On the eleventh day of May, 1917, judgment on default was entered in favor of plaintiff and against defendants. Thereafter defendants made motion to set aside default and the judgment, and tendered an answer setting forth a defense upon the merits. This motion was overruled. Appeal is taken to this court from the judgment. [1] The demurrer to the amended complaint was made on the grounds that there was a misjoinder of parties plaintiff, for the reason that it was sought to join with D. A. Batchoff, as administrator of the estate of Dimitre Stoycoff Ganeheff, deceased, the father and mother of said deceased; that the causes of action were improperly united in the complaint, in that the cause of action in favor of plaintiff, D. A. Batchoff, as administrator, was improperly united with the cause of action in favor of each the father and mother of the deceased; and that the amended complaint was ambiguous in that it could not be determined therefrom what damages were sought in behalf of the estate, what damages in behalf of the father of the deceased, and what damages in behalf of the mother of the deceased. The demurrer also rested upon the general ground that the amended complaint does not state facts sufficient to constitute a cause of action. From an examination of the amended complaint, the court is satisfied that it does state facts sufficient to constitute a cause of action under section 6486, Revised Codes, which provides as follows: “"When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives 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. 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.” — 183 — It is urged by appellants that under said statute there exists an action in favor of the personal representative of an estate for damages for the death of a person not a minor, and also in favor of the heirs at law of the deceased, and that in the amended complaint in question, it is impossible to segregate the damages that are claimed by the administrator, from those that are claimed by the heirs at law of the deceased. It is also contended that even though the names of the father and mother do not appear in the title of the case, yet, inasmuch as the amended complaint seeks to recover damages suffered by them, they are substantially parties to the proceeding. Under the theory of appellants, as above mentioned, arises the alleged improper joinder of parties and improper joinder of causes of action. Under the common law, any action for damages due to personal injuries would abate with the death of the party injured and no action at all could lie if the injury resulted in death. By reason of the apparent injustice of such a rule, statutes have been enacted whereby the cause of action survives the death of the party injured, and in case the injury produces death, then the cause of action survives to his personal representative or heirs at law. The right of action being statutory, it must be controlled and limited by the statute and its proper interpretation. In the case of Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 Pac. 441, is given a review of the history of legislation in this state whereby right of action is granted to the personal representative or heirs at law of the deceased for damages resulting in death. It appears that this statute was probably copied from the Code of Civil Procedure of California, as amended by the Act of March 24, 1874 (Cal. Code Civ. Proc., sec. 377). The supreme court of that state has had this statute under consideration in several cases and has uniformly held that the right of action is solely for the benefit of the heirs of the deceased; that the provision whereby action may be brought by the personal representative of the deceased — 184 — does not confer any right of action upon the estate of the deceased, but that the personal representative, in so bringing such an action, is acting merely as a trustee for the benefit of the heirs; that under either method of procedure, the action, in substance, is entirely for the benefit of the heirs; that the proceeds thereof cannot be considered any part of the estate of the deceased; and that, in fact, a proceeding cannot be sustained at all under this statute in case it does not affirmatively appear that the deceased died leaving heirs surviving him. Consistently with the principles above set forth, the same court holds that an action by the personal representative is a bar to any action by the heirs of deceased, and vice versa. (Munro v. Pacific Const. etc. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303; Webster v. Norwegian Milling Co., 137 Cal. 399, 92 Am. St. Rep. 181, 70 Pac. 276; Salmon v. Rathjens, 152 Cal. 290, 92 Pac. 733; Jones v. Leonardt, 10 Cal. App. 284, 101 Pac. 811; Ruiz v. Santa Barbara Gas & Elec. Co., 164 Cal. 188, 128 Pac. 330; Slaughter v. Goldberg, Bowen Co., 26 Cal. App. 318, 147 Pac. 90; Hirsch v. James S. Remick Co., 38 Cal. App. 764, 177 Pac. 876; Tann v. Western Pac. Ry. Co., 39 Cal. App. 377, 178 Pac. 971; Hartigan v. Southern Pac. Ry. Co., 86 Cal. 142, 24 Pac. 851.) In the case of Ruiz v. Santa Barbara Gas & Electric Co., supra, the court expressed itself in these words: “It is settled by the decisions that an action of the character authorized by section 377 of the Code of Civil Procedure is one solely for the benefit of the heirs, by which they may be compensated for the pecuniary injury suffered by them by reason of the loss of their relative, that the money recovered in such an action does not belong to the estate but to the heirs only, and that an administrator has the right to bring the action only because the statute authorizes him to do so, and that he is simply made a statutory trustee to recover damages for the benefit of the heirs.” In the case of Tann v. Western Pacific Ry. Co., supra, the court, in considering the sufficiency of a complaint based upon — 185 — said statute, used the following words: “Undoubtedly the complaint does fail to state a cause of action if it fails to allege that deceased was an adult and left an heir, or heirs, an allegation absolutely essential in an action of this character.” In Hartigan v. Southern Pacific Ry. Co., supra, the supreme court of California uses this language: “When the personal representative of the deceased brings an action to recover damages for the act or negligence causing death, if another action is afterward brought by the heirs of the deceased, the pendency of the prior action may be well pleaded in abatement of it; or if a judgment has been rendered in the first, such judgment may be well pleaded in bar of the second, action.” It will therefore be seen from the foregoing authorities that it is immaterial whether the action is brought by the personal representative or by the heirs of the deceased, for the action is substantially the same action and the damages recoverable are identical. Such being the ease, there cannot be anything improper in setting out in the complaint in question the damages alleged to have been suffered by the father and mother of the deceased. [2] It is contended that, the amended complaint fails to state that the father and mother of the deceased were in any way interested in the cause of action, for it does not specifically allege that they were the heirs at law of deceased. The amended complaint alleges that “said Dimitre Stoyeoff Gancheff died unmarried, intestate, leaving surviving him his father, by name Stoicko Gancheff, aged sixty-three years, and a mother, by name Penka Stoicko Gancheff, aged sixty years.” It appearing from the foregoing that the deceased died unmarried and intestate, his father and mother would necessarily be his heirs at law under the statutes of succession. (Rev. Codes, sec. 4820, subd. 2.) As such is the necessary inference from the language used, it must be held that the amended complaint sufficiently states that fact. — 186 — [3] It is contended by defendants that the judgment was entered without jurisdiction, for the reason that it was not entered for more than six months after the entry of default. This contention is based upon Revised Codes, section 6714, subdivision 6, which reads as follows: “An action may be dismissed or a judgment of nonsuit entered in the following cases: # * * (6) By the court, when after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months.” It will be noted that the obligation to enter judgment within the period of six months above mentioned is six months after verdict or final submission. While default was entered on the third day of October, no verdict was ever rendered, as the case was not submitted to the jury; and the ease was not fiually submitted to the court until the eleventh day of May, 1917, the date of the entry of judgment. Proof being required in such cases as this, upon which to base the entry of the judgment, judgment could not have been entered upon the default. Since it was entered upon the same day that proof was submitted, the statutory restriction does not apply. [4-6] It is also contended that the judgment was entered without jurisdiction, for the reason that the default was prematurely entered. The statute provides that when a demurrer to a complaint is overruled and time is given for answer, the time so given runs from service of notice of the order, except when the defendant is in court. (Rev. Codes, see. 6594.) In this case neither defendant nor either of defendants’ attorneys was in court at the time the order was entered; so the time for answer commenced to run from the time of service of notice of the order. Service of the notice was made ■ by the clerk by mail, under the provisions of section 7148 of the Revised Codes, which statute is as follows: “In case of service by mail, the notice or other paper must be deposited in the postoffiee, addressed to the person on whom it is to be served, at his office or place of residence, and postage paid. The service is complete at the time of the deposit, but if within a — 187 — given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended one day for every twenty-five miles distance between the place of deposit and the place of address. The service in any case is deemed complete at the end of forty days from the date of its deposit in the postoffice.” Conceding, for the purposes of this case, that service of notice could be made by the clerk by mailing a postal card (although it is doubtful whether or not such service could be deemed a legal service), service was complete at the time of the deposit of the notice in the postoffiee, which in this ease was the second day of September, 1916. Such service was complete upon deposit, even though the notice was never actually received by defendants’ attorneys. (Griffin v. Board of Commissioners of Walworth Co., 20 S. D. 142, 104 N. W. 1117.) The statute, however, provides that if, within a given number of days after such service a right may be exercised or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address. The question arises as to whether or not the time for answer was extended by this provision of the statute beyond the first day of October, 1916, inasmuch as the place of deposit of the notice was Anaconda, and the place of address, Helena. The distance between the two places is about ninety-seven miles, of which fact the court may take judicial notice. [7] The statute uses the expression “within a given number of days after such service,” and it is contended that, inasmuch as the order in this case did not specifically provide that answer should be made within a given number of days but on or before a definite date, such provision of the statute does not apply. It is the opinion of the court, however, that by the enactment of this provision of the statute it was the intention of the legislature to give to a party living at a distance — 188 — from the place of mailing additional time for performing the act to be done equivalent to one day for each twenty-five miles distance. It is substantially the same thing whether the order requires the act to be performed within a limited number of days, or on or before a definite date; and there can be no reason why, if the rule should be applied in one case, it should not be also applied in the other. The reasonableness of such a construction is apparent when it is considered that if the statute is not so construed, one may literally comply with the statute and absolutely prevent the other party from exercising his right, by giving a notice so late that the other party could not act upon it within the time required by such an interpretation. In this particular case, if notice had been deposited upon the thirtieth day of September, 1916, the notice would be complete upon that date and before the time required for answer, and yet it is evident that the defendants would not have been given any opportunity whatever to make such answer. It is therefore the opinion of the court that under the provisions of this statute, the time of defendants for answer was extended to and included at least the fourth day of October, 1916. Under this construction of the statute, the default was prematurely entered, was without jurisdiction, and the judgment which followed was likewise without jurisdiction and void. For the reasons above mentioned, the judgment is reversed, and the cause remanded, with directions to the lower court to set aside the default and permit the defendants to file their answer as of the time of its tender. Reversed and remamded. Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway concur. Mr. Justice Galen, being disqualified, takes no part in the decision of this case.