107 Va. 206 | Va. | 1907
delivered the opinion of the court.
M. L. Brammer, while driving in a wagon across the Norfolk & Western Bailway tracks at a crossing in Henry county, Virginia, was struck by a locomotive, and, in addition to the killing of the team and the destruction of the wagon, he received personal injuries. He thereupon sued the railway company for injury to his person and property, but died pending that action. After his death the action was revived, under section 2906 of the Code, as amended by the Act of January 29, 1894, in the name of J. D. Short, his administrator, and proceeded in, in the circut court, and afterwards in this court, to a final adjudication adverse to the plaintiff.
Before the final adjudication in that case, the present action was brought by the same plaintiff for the personal injuries to Brammer, resulting, as alleged, in his death, and at the -hearing thereof, which was after the final adjudication in.the first case, the defendant company tendered certain pleas of res adjudícala, which were sustained by the court below; and to that judgment this writ of error was awarded.
It is contended for plaintiff in error that the circuit court erroneously sustained the pleas of res adjudícala by resort to the doctrine of estoppel, and that, under sections 2902 and 2903 of the Code of 1887, the present action is maintainable on behalf of the widow and children of Brammer, independent of the right of action subsisting in Brammer at his death.
Section 2902 provides for the right of action in case of death in the following language: “Whenever the death of a person shall be caused by thé wrongful act, neglect or default of any person or corporation, or of any ship or vessel, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action,” etc.;
The argument of the learned counsel for plaintiff in error, in support of the contention that this action is maintainable, notwithstanding it has been finally adjudicated adversely to the same plaintiff in another action against the same defendant to recover damages for the same cause, proceeds upon the theory that the purpose and effect of our statute, the prototype of which is “Lord Campbell’s Act,” is fo create a new cause of action— in fact, two new causes of action—in all cases in which the injured party would have had a cause of action had not death ensued—the one for the benefit of the decedent’s estate, and the other for the benefit of the relatives nominated in the statute; and decided cases cited from other jurisdictions, seemingly at least, afford support for this contention.
At common law, the. right of action, if any, which Brammer had against the defendant in error, with respect to personal injuries to him, would not have survived his death, and it is, therefore, only by virtue of the statute that the action he had
Where the action brought by the injured party in his lifetime is revived, in the name of his administrator, after his death, or the action is brought under the statute after his death, the issue in either case is the same, the right of recovery resting upon the same state of facts, namely, the injuries resulting in death being caused by the wrongful act, neglect or default of the defendant. The plain meaning and intent of the statute, construing the sections which have been referred to together, as appears to us, is, to preserve a right of action, which, theretofore, would have been lost, where the injured party died after or before he had brought an action to recover damages for the wrongful act, neglect or default of another person or corporation, etc.
It would be an anomalous situation if the language used in our statute could be so construed, that, after a court of competent jurisdiction has ascertained, in a suit brought by a party himself, that the wrongful acts which constitute the sole fundation of any recovery against the defendant are not of actionable character, and that the injured person is not entitled to maintain an action by reason of them, or to recover damages on their account, other parties, in another and- subsequent proceeding, may proceed to show, in an action for their benefit, founded upon the same alleged acts of the defendant, that at the time of the intestate’s death, he was, as a matter of fact, the judgment of the court to the contrary notwithstanding, entitled to maintain an action against the defendant company, and to recover damages for the very acts in respect of which, recovery was
As remarked, there are decided cases construing other statutes, which afford support for the contention of plaintiff in error; hut it would prove unprofitable to review those cases, since, after all, this case must turn upon the construction of our own statute, which we feel constrained to give it.
In Spiva v. Osage, &c. Co., 88 Mo. 68, an action for the wrongful death of plaintiff’s intestate, the court said: “The right of action accruing to the widow under the statute, is such as would have existed in the husband’s favor if death had not ensued, and none other, and as we hold the husband could not, under the evidence, have maintained the action if he had survived the accident, a recovery must be denied plaintiff upon the same ground.”
In Kauffman, Admr. v. Cleveland &c. Ry Co., 144 Ind. 456, 43 N. E. 446, another action for the wrongful death of plaintiff’s intestate, it is said: “Such an action as this is merely statutory, and the statute that authorizes it does so upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission.”
In B. & O. 8. W. Ry. Co. v. Pietz, 61 Ill. App. 161, the opinion of the court reversing a judgment in favor of the administrator, for the wrongful death of his intestate, upon the ground that the intestate had been guilty of contributory negligence, says: “-She (the injured party) would be so barred, as the law is held in this state, had she survived the injury and sued on her own account, and necessarily her administrator, when suing for the benefit of the next of kin, must be barred also.”
As suggested by counsel for defendant in error, if this action could be maintained, it could also be maintained, although Brammer, in his lifetime, by compromise or by recovery in an action for his injuries, had been compensated therefor.
In 13 Cyc. 327, citing a number of authorities, it is said: “While the authorities are by no means unanimous upon the point, the better doctrine seems to be that where one, in his lifetime, recovers damages for personal injuries, caused by negligence, and death subsequently results therefrom, his personal representatives or beneficiaries designated in the statute, are barred from recovery, under a statute giving them a right of action for death by wrongful act.” And, further, “Likewise, where the plaintiff, in an action for personal injuries, dies 'from such injuries pending the action, and his administrator recovers judgment therein, such judgment is a bar to an action by the administrator or the beneficiaries for the death by wrongful act.” In support of this last quotation, there are also a number of authorities cited.
There is a great weight of authority for the proposition that a judgment for damages for personal injury by the wrongful act or neglect of another, or where the injured party has received satisfaction in his lifetime for the injuries he sustained, is a bar to the action under the statute by the personal representative for damages by reason of the plaintiff’s subsequent death. The real question here is, whether a judgment against the plaintiff in error, the administrator of Brammer, based on the finding of the court on the same issue of fact and law presented to it, is a bar to a subsequent action involving the same cause of action.
In our view of the statute we are considering, but one action can be maintained to recover damages' for injury to a person caused by the wrongful act, neglect or default of another person
It follows that we are of opinion that, in any view to be taken of this case, the judgment of the circuit court is right, and should be affirmed.
Affirmed.