delivered the opinion of the Court.
This suit in its final analysis is brought to recover excess over the policy limits of an automobile liability insurance policy. The trial judge sustained the plea in abatement on the ground that the cause of action did not survive. The plaintiff below has appealed, and counsel presented a learned and extended argument in which, conceding, as we understand it, that the recovery sought is in excess of the provision in the policy covering property damages.
The defendant in error issued to the plaintiff’s intestate an automobile liability policy which protected the intestate for damages growing out of an accident. The policy had the limits of $10,000 for each person and $20,-000 for each accident resulting in bodily injuries, and
*405
$5,000 for damages to property of other persons. The intestate had an accident in which two persons were injured and the property of another was damaged. Be-garding the personal injury suits, one was settled out of court, and the other after final litigation was settled by the defendant in error paying $10,000 for the personal injuries and paying $1,350 on the property damage. This was the value fixed for the property damages by the Court of Appeals in the case of
Spence v. Carne,
In the very well-drawn declaration the plaintiff’s intestate sues the defendant “for damages resulting from defendant’s negligence and bad faith and from defendant’s breach of its obligations and duties under its automobile liability insurance contract with her intestate, Dr. John E. Carne, and for her cause of action says.” Upon reading and re-reading the entire declaration it is seen that the quotation, just quoted, is the gravamen of the declaration. In other words, the declaration is bottomed on the same averments and allegations as to the cause of action as those as set forth in
Southern Fire & Casualty Co. v. Norris,
In the able brief of counsel it is attempted to base this suit on a breach of contract and in effect to waive the tort therein alleged and sue in
assumpsit
very much as was done in such cases as
Baker v. Huddleston,
“Negligence and bad faith” are tort actions for the commission of the acts by one accused of either being negligent or exercising bad faith in the carrying out of their contract. In
Southern Fire & Casualty Co.,
supra [
*407
In the present case Dr. Carne, the insured, died after this automobile accident and before instituting any suit herein. The tort or wrong that he claims was committed by the defendant in error prior to his death and prior to the institution of any suit thereon. Under the common law death gave rise to no causes of action, and terminated all those for personal torts. See
Brown v. Stephens,
No suit having been brought as stated in the cause of action herein set forth, the right of action died with Dr. Carne, since none was instituted during his lifetime.
Daniel v. East Tenn. Coal Co.,
The characteristics or distinguishing features between a tort and that of a contract are well stated in The Law of Torts by Mr. Prosser, page 4 thereof, thus:
“That is to say, that no man need enter into the obligation of a contract with another save by his own free will; but when he drives an automobile down the street, the law imposes upon him an obligation to‘ all persons in the highway, to drive it with reasonable care for their safety — and this without his consent or understanding, and if necessary over his vigorous protest. If he does not do so, and injures another, it is a tort. ’ ’
And further at page 478 of the same work, the author says:
*408 “Even as to these individuals, the damages recoverable for a breach of the contract duty are limited to those reasonably within the contemplation of the defendant when the contract was made, while in a tort action a much broader measure of damages is applied. ’ ’
Thus it is by this very simple illustration we see the situation in this kind of case now before us. Here the suit is brought for a sum in excess of that stated in the policy and for attorney’s fees, etc. None of these things are part of the contract but would inure to the benefit of the plaintiff in tort for bad faith, if any, of the defendant in error in carrying out its contract with the deceased.
It is very forcibly and ably argued in behalf of the plaintiff in error that the cause of action herein was assignable, and thus if it was assignable, it survived and suit can now be maintained on it by the representative of the deceased. The test of assignability of a right of action
ex delicto
as we have heretofore determined this is, is made to depend upon whether or not it is survivable.
Haymes v. Halliday,
Section 20-607, T.C.A., which is a survival or wrongful death statute, only applies where death resulted from acts of the defendant out of which the suit is brought, and where no action was instituted before the death the cause of action for pain and suffering did not survive upon the death of the victim.
Stewart v. Crook Sanartorium,
The Arkansas courts in
Billingsley v. St. Louis, etc.,
We have been very much interested in our study of the able briefs herein as well as our independent investigation of the matter, and we are satisfied that the action upon which this suit is based cannot be assigned, and for the reasons herein stated the judgment of the lower court must be affirmed.