(special concurrence and dissent).
I concur in most of the principles of law stated in Chief Justice Erickstad’s opinion and the case law referred to, but I respectfully dissent from the rationale employed in reaching the conclusion and from the conclusion itself.
An action for wrongful death did not exist under common law and is purely a creature of statute. Harshman v. Northern Pacific Railway Co., 14 N.D. 69, 103 N.W. 412 (1905). In this respect it is an action which meets the provisions of subsection (2) of § 28-01-16, NDCC, as an action resting upon liability created by statute.
Section 28-01-16(2), NDCC, made its first appearance in the Civil Code of 1877, § 54. It provided:
“An action upon a liability created by statute, other than a penalty or forfeiture.”
The 1895 Code, § 5201, shows that an amendment was made to the section by changing the period to a comma, and adding “when not otherwise expressly provided;”. The 1895 Code does not give any source for changing the period to a comma and adding the language “when not otherwise expressly provided.” The North Dakota Century Code under “Derivation” states that it was obtained from Wait’s (N.Y.) Code, 91;1 and Harston’s (Cal,) Practice, 337.2
Section 28-01-18 first appeared in the Civil Code Procedure of 1877 in § 56, but it consisted only of subsections (1) and (2). Subsection (3) relating to malpractice came into being through Chapter 87 of the 1893 Session Laws. Subsection (4) made its first appearance in the Revised Code of 1895, § 5203, but the source gave no indication as to when it came into being or by what manner it came into being. It provided as follows;
*70“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 death of the party injured.”
Sometime later the semicolon was removed and a comma was put in its place.
The derivation in the Code states it came from Wait’s (N.Y.) Code, 93;3 and Har-ston’s (Cal.) Practice, 340.4
A review of the statutes of the states from which our law was adopted is not very helpful because the provisions under consideration were not part of the law of the states from which our statutes were modeled. Neither is a review of the New York statutes very helpful because New York ultimately provided for a wrongful death statute which contained its own statute of limitations, and, for that matter, California’s wrongful death statute also contains its own time limitations.
However, the courts in two instances left the impression that the limitation pertaining to an action based on a liability created by statute would apply were it not for the fact that the California wrongful death statute, subdivision (3) of § 340 of the Code of Civil Procedure, was a special statute and contained its own period of limitation which controlled, rather than a general statute, subdivision (1) of § 338, Code of Civil Procedure, setting forth the time limitation of actions based on a statutory liability. In Aetna Casualty & Surety Co. v. Pacific Gas & Electric Co., 41 Cal.2d 785, 787, 264 P.2d 5, 6 (1953), the court said:
“No matter who may be the party plaintiff, the cause of action [wrongful death action] is one within the express terms of subdivision 3 of section 340 of the Code of Civil Procedure. That section is a special statute controlling the time within which any action covering such injury may be commenced, and it prevails over the general statute applicable to actions based on a ‘liability created by statute’. Code Civ. Proc. sec. 338, subd. 1.”
The reasoning of the California court was followed in Klingebiel v. Lockheed Aircraft Corporation, 372 F.Supp. 1086 (1971) U.S. District Court North District of California, which was affirmed in 494 F.2d 345, 347 (9th Cir. 1947). I did not make any elaborate effort to find out if any other state has addressed itself to the same question.
The North Dakota wrongful death statute, § 32-21-01, does not contain a limitation of time in which the action must be commenced, therefore we must theil go to the statute of limitations found in Ch. 28-01, NDCC, to determine what period of limitations applies to the wrongful death action. As pointed out earlier herein, the wrongful death action is one created by statute and as such it meets the provisions of § 28-01-16(2), which provides:
“The following actions must be com- ■ menced 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.”
A liability created by statute is a liability which would not exist except for the statute. See Vol. 25 Words and Phrases, page 83 et seq., and pocket part. A wrongful death action is one which falls within this definition.
*71The other provision which may have some application is found in § 28-01-18(4), NDCC:
“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.” [Emphasis added.]
This raises the interesting question: Which of the statutory limitations applies to an action for wrongful death? The principle of law. relating to the interpretation and construction of statutes that every word, clause, and sentence must be given consideration also applies here. With that principle in mind, § 28-01-18(4) is examined.
First, it must be noted that it applies to actions for injuries done to the person of another. The term “injuries” here does not embrace the broad concept of such term but is limited to the injuries which caused the death. This is evidenced from the language “when death ensues from such injuries”. The term, “such injuries,” refers to injuries done to the person of another. In essence, subsection (4) of § 28-01-18 refers to actions for injuries which result in the death of the person injured. After comparing this provision with Ch. 32-21, NDCC, Death By Wrongful Act, it must be noted that the damages authorized under Ch. 32-21, more specifically § 32-21-01 and § 32-21-02, the damages relate to the numerous items that the beneficiary might reasonably have expected, including value of services, earning ability, and other such related items. See, Stejskal v. Darrow, 55 N.D. 606, 215 N.W. 83 (1927); Umphrey v. Deery, 78 N.D. 211, 48 N.W.2d 897 (1951). From this it should be immediately recognized that the wrongful death statute is not limited to merely the injuries done to the person who died, but to damages that the beneficiaries, generally outlined in § 32-21-03, have sustained. A valid argument can be made that § 28-01-18(4) relates to the injuries sustained by the person who died from such injuries and that the cause of action survives the injured person and that the cause of action is deemed to have accrued at the time of death of the injured person rather than at the time of the infliction of the injuries. Under this concept, the action under § 28-01-18(4) is a separate and distinct action from the action for wrongful death under Ch. 32-21. As stated in Chief Justice Erickstad’-s opinion, 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 clearly supports the conclusion that the provisions of § 28-01-18(4) merely provide that the cause of action for injuries done to a person who died from such injuries is deemed to have accrued at the time of the death. If death had not ensued, the time limitations would be governed by the ordinary statute of limitations on injuries. The injuries covered would be generally such as pain and suffering, medical expenses, and loss of earnings to the individual injured; whereas the wrongful death statute addresses itself to losses sustained by the beneficiaries, which does not include pain and suffering, medical expenses, etc.
I cannot agree that this court intimated or in dictum said that the appropriate period is a two-year limitation under § 28-01-18(4) in Hubbard v. Libi, 229 N.W.2d 82 (N.D.1975), or Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973), or Van Ornum v. Otter Tail Power Co., 210 N.W.2d 207 (N.D.1973).
Considering again the provisions of § 28-01-16(2) it should be noted that with reference to a liability created by statute, we have no other provision expressly providing otherwise, and as has already been pointed out, § 28-01-18(4) pertains to injuries done to the person who dies from such injuries and does not address itself to an action for a wrongful death under Ch. 32-21, NDCC.
No matter what rationale is employed' or relied upon, at the very minimum a doubt exists.
*72In Sprecher v. Magstadt, 213 N.W.2d 881 (N.D.1973), the court quoted from Adams v. Little Missouri Minerals Association, 143 N.W.2d 659 (N.D.1966), wherein it said:
“Where substantial doubt exists as to which of two limitation statutes is applicable, the longer period will be applied.”
This comment was not mere dictum because it also appeared in the syllabus, which was still required pursuant to the Constitution at that time. Under this concept and rationale, § 28-01-16(2), NDCC, applies to the wrongful death statute.
The argument that if § 28-01-18(4) did not pertain to wrongful death actions there would have been no need for its enactment because the same subject matter would be covered in § 28-01-26 is neither convincing nor persuasive. We have repeatedly seen where the Legislature has provided for something in a general way and then provided for a similar or related matter in a more specific manner, which of course gave rise to the rule that the more specific prevails over the general, in the event there is a conflict. If the argument were valid then there would have been no need for the enactment of § 28-01-18(4) because the subject matter was already covered in § 28-01-26. However, as it is, .§ 28-01-26 pertains to all types of actions, not only those relating to an injury which caused death, whereas § 28-01-18(4) is limited to injuries from which death ensues.
Furthermore, it would seem reasonable and logical that if the Legislature were truly concerned to provide for a special statute of limitations that applied to wrongful death actions at the time it was enacted the Legislature would have provided for such limitation within the wrongful death act rather than enact what is now § 28-01-18(4), NDCC, which makes no mention of the wrongful death act and can be applied to the wrongful death act only by straining, especially where the wrongful death action was already covered in what is now § 28-01-16(2), NDCC.
Even though I am convinced that § 28-01-16(2), NDCC, rather than § 28-01-18(4), NDCC, applies to the wrongful death statute for the reasons set out earlier herein, I also believe the Legislature should remove any and all doubts by making the appropriate amendment for the benefit of the practicing bar.
.“§ 91. (Am’d 1849)
“Within six years:
1. An action upon a contract, obligation, or liability, express or implied; excepting those mentioned in section ninety;
2. An action upon a liability created by statute, other than a penalty or forfeiture;
3. An action for trespass upon real property;
4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property;
5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated;
6. An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such cases not to be deemed to have accrued, until the discovery •by the aggrieved party of the facts constituting the fraud.”
. “337. Within four years:
“An action for any contract, obligation or liability, found upon any instrument in writing executed in this State.”
. Ҥ 93.
“Within two years:
1. An action for libel, slander, assault, battery, or false imprisonment;
2. An action upon a statute, for a forfeiture or penalty to the people of this State.”
. “340. Within one year:
1. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation;
2. An action upon a statute or upon an undertaking in a criminal action for a forfeiture or penalty to the people of this State;
3. An action for libel, slander, assault, battery, false imprisonment or seduction;
4. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process;
5. An action against a municipal corporation for damages or injuries to property caused by a mob or riot.”