3 S.D. 369 | S.D. | 1892
This was an action brought by plaintiff, as the administrator of the estate of Merritt J. Belding, deceased, to recover damages alleged to have been caused by the negligence of the defendant, resulting in the death of the decedent. The complaint alleges, in substance, that on September 13, 1890, while deceased was a passenger on the cars of the defendant, a certain tree standing contiguous to the railroad track of the defendant, by reason of the negligence of the servants and agents of defendant, fell, struck the deceased, and instantly killed him. The damages alleged to have been sustained are stated in the complaint as follows: “(5)'That said Merritt J. Belding was at the time of his death a resident of Lawrence county, in said state, a married man, and left a widow, Julia Belding, who was dependent on him for support; and also'left two children, Harry J. Belding, aged twelve years, and Pearl Belding, aged eight years, dependent upon him for support, nurture, and education; and these have been injured and damaged by the negligence of said defendant and its servants, causing the death of deceased, as'aforesaid, in the sum of thirty thousand dollars; and the plaintiff, as administrator of the estate of said deceased,' has been injured and damaged as aforesaid in the sum of thirty thousand, dollars. Wherefore said plaintiff, as administrator of the estate of said Merritt J. Belding, deceased.
The following errors are assigned: “(1) The court erred in sustaining plaintiff’s action and not dismissing it for want of a cause of action stated in plaintiff’s complaint. (2) The court erred in overruling defendant’s motion to arrest judgment herein. (3) The court erred in rendering and entering judgment in favor of said plaintiff and against said defendant.”
The motion to arrest the judgment was, in effect, an objection to the complaint that'it did not state facts sufficient-to constitute a cause of action in favor of the plaintiff. If the complaint is fatally defective, and cannot be made good by amendment, no judgment could legally be entered upon it, and the motion should have been granted. The only question presented on this appeal, therefore, is, did the complaint state facts sufficient to constitute a cause of action in favor of the plaintiff that would entitle him to recover in this action? The learned counsel for appellant contend'that as it is alleged in the complaint that the death, resulting from the injury, was instantaneous, the action could not have
It will be observed that that act makes no provision for the institution of an action for the benefit of the estate, but does provide that a suit by the administrator or executor may be maintained for the use and benefit of the wife, husband, parent, and child, and that the amount recovered shall be apportioned among the beneficiaries in such shares as the jury, by their verdict, shall direct. It will be further noticed that such action for the use and benefit of the beneficiaries may be maintained in all cases where the action could have been maintained by the deceased had death not ensued. As before stated, most of the states have statutes modeled after this act, with more or less changes in the phraseology, but retaining substantially the substance of the act. In this state, however, the legislature has adopted an entirely new system, as will appear from an examination of the sections above quoted. It will be noticed — First, that by section 5498 an
Considering, first, section 5498, — as that is the section under which it is claimed this action was brought, — the question naturally arises, does that section create a new cause of action, as claimed by counsel for the plaintiff, or is it in the nature of a survival statute, as contended for by the counsel for appellant? We are of the opinion that no new cause of action is created by that section. It limits, it is true, the right of survival to the personal representatives of persons other than employes of the railroad company, and limits the liabilty to such actions to railroad companies only. The personal representative can, in our opinion, recover no damages that .could not have been recovered by the deceased had he survived the injury. He cannot, under that statute, recover for the loss of the life of the deceased. That right is only conferred upon the widow, heirs, or personal representative by the following section. The personal representative, under that section, can only recover in the same manner the deceased could have recovered had he survived the injury. This, we think, is made clear by an examination of the two sections, and was the intention of the legislature, as the expression, “in the same manner,” in the former section, would indicate.
In what manner, and under what circumstances, could the deceased have recovered had death not ensued? He could have recovered, in addition to his physical and mental suffering, for loss of time and employment, the expenses of medical and surgical attendance, nursing, etc., incident to the injury. Can the personal
The counsel for respondent cites several cases as holding a contrary doctrine, but as these decisions were made, with one exception, under statutes quite different from the one we are considering, they aid us but little in the solution of this question. Such is the case of Brown v. Railroad Co., 22 N. Y. 191. That decision was based upon the statute of New York quite similar to the English act. The one exception, however, (Givens v. Railroad Co., 89 Ky. 231, 12 S. W. Rep. 257,) was made under a similar section, but we are unable to reach the conclusion arrived at by the learned supreme court of Kentucky in that case. The learned counsel for respondent, it seems to us, attaches too much importance to the words of section 5498: “If the life of any person * * * shall be lost.” They insist that the loss of life is the gist of the action under that section, and not the injury. But no right to recover for the loss of the life is given under that section. “If the life of any person * * * shall be lost,” the personal representative shall recover — what? For the loss of the life? Clearly not; but “damages (for the injury) in the same manner that the person might have done for any injury when death did not ensue.” Could any language more clearly express the intention of the legislature to give, by this section, a right to recover damages for the injury, precisely as the deceased could have recovered them had he survived? This court cannot impute to the legislative body that passed this section a want of knowledge as to the use of language to express their intention, for by the next section, where they clearly intended to create a new cause of action in favor of the widow, heirs, etc., for the loss of the life, the intention is clearly and accurately expressed that such widow, etc., shall have the right to recover damages for the loss or destruction of the life aforesaid! Had that body intended by the former section to confer upon the administrator such right, would it not have been equally explicit and direct, instead of using the language we find in the section? We think it would.
The complaint, in our opinion, is fatally defective under section 5498, and is incapable of amendment that- can make it a good complaint under that section. The respondent, while insisting that the complaint is good under section 5498, strenuously contends that, if not good under that section, it is good under section 5499. This is controverted by counsel for appellant, who insist that the complaint is fatally defective under that section also; and they
The theory of the respondent’s counsel is that both sections were intended to provide for the recovery of damages for the loss of the life of the party as against railroad companies, and that by the former section the damage is given to the estate, and by the latter to the widow and heirs. The language of the sections warrants no such construction. So far as appears, both sections were adopted together, and it would be strange, indeed, if the legislature intended that both should be for the loss of life, thát the language used in each should have been so entirely dissimilar. Can the action be sustained by the personal representative under section 5499? That section, it will be noticed, confers the 'right to sue upon the widow, heirs, or personal representative. This section seems designed to embody the principle underlying the English and similar acts, — that of enabling the widow and heirs to recover the damages sustained by her or them by the loss or destruction .of the life of the deceased, — yet in its terms