205 Mo. 493 | Mo. | 1907
The plaintiff brought suit under section 2865', Revised Statutes 18991, for the alleged negligent killing of her husband, Depello Bates, by an employee of James J. Sylvester, by negligently driving a horse and carriage belonging to said defendant over her said husband on or about April 11, 1908. After the suit was filed the cause was dismissed as to the defendant Orissie L. Sylvester and the other defendant, James J. Sylvester, died; his death was suggested to the court and the plaintiff having complied with the statutes, sought to revive the action against
I. At common law actions in tort do not survive the death of either the wronged or the wrongdoer. This rule of the common law forbidding the survivor of actions, or right of action ex delicto, was first modified in this State in 1835, by the enactment of what is now sections 96 and 97, Eevised Statutes 1899, which are as follows:
“Sec. 96. Actions for torts by and against administrators, what may be maintained. — For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.
“Sec. 97. Last section not to extend to what actions. — The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to' actions on the case for injuries to the person of the plaintiff, or to the person of the
In Higgins v. Breen, 9 Mo. 497, it was pointed out by Judge Scott that the Statute of 4th Edward III “only gave actions to executors, and not against them, for as against the person committing the injury, the action dies with him. [Chitty, 50; 1 Saunders, 217.] Our statute has changed the English law in this respect, and has given an action both to and against executors and administrators, and by employing much broader language than the statute of Edward, seems to have included by express enactment the injuries which were comprehended in that statute only by construction. The words of our statute are, ‘for wrongs done to the property, rights or interest of another,’ etc., with the exception of actions for slander,, libel, assault and battery, or false imprisonment, and to actions on the ease for injuries to the person. [R. S. 1835, Title Administration, art. 2, secs. 24 and 25.]”
Sections 96 and 97 have heeu construed by this court. Thus in Vawter v. Railroad, 84 Mo. 1. c. 685, 686, Judge Black, speaking for this court, said: “An administrator appointed in this State receives his power and authority to sue from the laws of this State, and from this State alone, to which he is amenable throughout the entire course of the administration. There is no statute of this State by which he has or can have anything to do. with suits of this character or the damages when recovered. He may, by section 96, Revised Statutes 1879, bring an action for all wrongs done to property rights or interests of the deceased against the wrongdoer. Section 97 provides:. ‘ The preceding section shall not extend to actions . . . on the case for injuries ... to the person of the testator or intestate of any executor or administrator. ’ Eor fear that section 96 might be construed to confer upon the administrator a right to sue for injuries
The learned counsel for the plaintiff insist that any. action sounding in tort which does not expressly fall within the limitations of section 97 can be revived by or against the representatives of a deceased party to the action, and as section 97 only bars actions on the case for injuries to the person of the plaintiff, the only question before this court in this case is whether or not this is an action for injuries to the person of the plaintiff, and as this is not an action for injury to the person of Mrs Bates, her cause of action survives against the administrator of the alleged wrongdoer, James J. Sylvester. We are unable to concur in this deduction of the counsel for plaintiff, for the reason that at common law the rule was just the other way, that is to- say, actions for tort did not survive, and under section 96, actions for tort do not survive unless they are within the terms of section 96. And if by virtue of the general provisions of said section an action might be said to survive, nevertheless if included within the prohibition of section 97 it will not survive. By reference to section 96, it will be noted that the statute refers to “wrong done to property, rights or interests of another,” and counsel for plaintiff cite us to James v. Christy, 18 Mo. 162. That was an action by the administrator of James for the negligent killing of his son by the explosion of a steam ferry boat on which the' son was a passenger. The son was living with his father and was fifteen years old. The question was whether the action survived to the administrator of the father, and it was held by this court that the father had a property-right in the service of his son during his minority and whilst he was under his
James v. Christy, supra, was decided in 1853, two years before the enactment of any statute in this State providing for recoveries in cases of injury resulting in death, and it is clear that if the father in that case had brought an action for the death of the infant son he could not have recovered, because section 96, then in force, dealt only with the survivor of existing actions and not with the creation of new ones, and by the common law such an action could not have been maintained. Sections 96 and 97 are literal transcriptions of the New York statutes on this subject. In Hegerich v. Keddie, 99 N. Y. 1. c. 264, the Court of Appeals of that State, construing the two sections of the New York statute, said: “Reference to the law as it stood prior to the revision (and the application of the maxim noscitur a sociis) would seem to require such an interpretation of the words ‘property, rights or interests’ as will confine their application to injuries to property rights only, and such as were therefore enforcible by
What was said in Behen v. Railroad, 186 Mo. 430, arguendo, that our statute authorizing recovery for the wrongful death creates a new cause of action and does not simply provide for the survivor of an existing one, is not in harmony with the cases above cited and is contrary to the last expression of this court in Banc on this subject in Strode v. Railroad, 197 Mo. 626. Having thus reached the conclusion that this action did not survive by reason of section 96, Revised Statutes 1899, is there anything in sections 2864, 2865 and 2866 which provide that this action shall survive the death of the tortfeasor or wrongdoer? The language of section 2865 is that whenever the death of a person should be caused by a wrongful act, neglect or default of another . . . the person 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 section 2864 provides when any person shall die from an injury resulting from or occasioned by the negligence, etc., of any officer, agent, etc., whilst running, conducting or managing any locomotive, car or train of cars, etc., or when any passenger shall’ die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, etc., the corporation or individual in whose employ any such officer, agent, etc., shall be at the time of such injury, or who owns any such railroad, etc., at the time the injury is received, shall forfeit and pay for every person or passenger so dying the sum of five thous- and dollars, which may be sued for and recovered, first, by the husband or wife of the deceased, or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased,
Counsel for the plaintiff, however, have called our
We have already noted that our act, section 96, Revised Statutes 1899, is confined to actions for torts for wrongs done to property rights or interest of another and not to personal torts or actions on the case for injuries to the person. An examination of the decided cases in other jurisdictions confirms the
This same question has received the consideration of the Supreme Court of Indiana in Hamilton v. Jones, 125 Ind. 176 (1890), and Mitchell, J., with great care and discrimination reviewed the cases of Hegerich v. Keddie, Yertore v. Wiswall, Cregin v. Railroad, Russell v. Sunbury, already noted, and Moe v. Smiley, 125 Pa. St. 136, and Ott v. Kaufman, 68 Md. 56, and disapproved Yertore v. Wiswall, as the Supreme Court of Ohio, and the Court of Appeals of New York have; and reached the conclusion, “that statutes in derogation of the common law are to be strictly construed, and one who seeks te maintain an action which was
The same question has been considered by the Supreme Court of Arkansas in Davis v. Nichols, 54 Ark. 358. That court also refused to accept the doctrine of Yertore v. Wiswall, 16 How. Pr. 8; and Cockrill, C. J., said: “The statute under which that branch of the suit was maintained authorizes an action against a wrongdoer, but it is silent as to the administrator of the wrongdoer; and unless the provisions-of the statute first cited [corresponding to our sections 96 and 97] cure the defect, the action must abate under the familiar rule of the common law that the wrongdoer and the wrong are buried together. The question has arisen frequently under statutes which, like ours, are modeled after Lord Campbell’s Act, and it has been invariably decided against the right of revivor..... The courts were driven to that conclusion in the cases cited, because it was found that the common-law rule as to the survivability of actions had not been changed by legislation — the duty of the courts being to declare the law, and not to make it. ’ ’ And he added: “ These cases clearly show that the right of the widow to' recover damages for the death of her husband is not based upon an injury to property within the meaning of the statute.” To the same effect will be found Moe v. Smiley, 125 Pa. St. 136; Johnson v. Farmer, 89 Tex.
Our conclusion is that in the light of the common-law and the construction placed upon our Damage Act by this court, the action of the plaintiff did not survive against the defendant as administrator of James J. Sylvester and the judgment of the circuit court in refusing to permit the cause to be revived was and is correct and accordingly it is affirmed.