81 S.E. 917 | N.C. | 1914
This is an action to recover damages for the wrongful death of the plaintiff's intestate, caused, as alleged, by the negligence of the defendant.
The intestate was injured on 1 December, 1903, and died on 7 June, 1912. On 27 December, 1903, the intestate executed the following conditional release:
SEABOARD AIR LINE RAILWAY.
Conditional Release Agreement.
If, before the expiration of thirty days from this date, the Seaboard Air Line Railway shall pay to me, H. O. Causey, the sum of $75, I hereby agree to release the said railway of and from all claims whatsoever for damages for or on account of personal injury sustained by No. 1 freight running into A. C. L. freight at Hilton Bridge, throwing me against stove, cutting my head, on 1 December, 1903.
Witness my hand and seal, this 27 December, 1903.
(Signed) H. O. CAUSEY. [SEAL]
Witness: (Signed) R. M. BALDWIN.
The foregoing conditional release agreement has the following indorsements stamped on it: "Voucher made for 5 January, 1904, amount shown," and "Voucher sent to Auditor Disbursements, 8 February, 1904."
On 17 February, 1904, the intestate executed the following release:
SEABOARD AIR LINE RAILWAY.
Release.
For and in consideration of the sum of seventy-five and no/100 dollars ($75) to me paid, the receipt of which is hereby acknowledged, I, H. O. Causey, do hereby release and forever discharge the Seaboard Air Line Railway, and any and all railroads owned, leased, operated (7) or controlled by it, and its successors, from all injuries received by me in collision of trains S. A. L. No. 1, and A. C. L. No. 80, on or about 1 December, 1903, at or near Wilmington, N.C. while a conductor in the employ of the Seaboard Air Line Railway; the consideration hereinbefore referred to being in full compromise, satisfaction, and discharge of all claims and causes of action arising out of the *31 injuries, and in exoneration of the railway from all liability by reason thereof.
In witness whereof I have hereunto set my hand and seal, this 17 February, A.D. 1904.
(Signed) H. O. CAUSEY. [SEAL]
Signed, sealed, and delivered in the presence of:
(Signed) R. M. BALDWIN.
The defendant pleaded the release as a defense, and also the statute barring a recovery for personal injury within three years.
The plaintiff replied, alleging that the release was procured by undue influence and fraud.
The jury returned the following verdict:
1. Was H. O. Causey, the intestate of the plaintiff, killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
2. Did H. O. Causey, the intestate of plaintiff, execute the release as alleged by the defendant, the Seaboard Air Line, in its answer? Answer: Yes.
3. If plaintiff's intestate did execute and deliver the said release, did he at the time of the execution thereof have sufficient mental capacity to understand the nature and effect of the said release? Answer: Yes.
4. If the deceased, H. O. Causey, did not have such mental capacity, did the defendant have notice thereof? Answer: No.
5. If said release was executed and delivered as alleged in the answer, was the same procured by fraud and undue influence of the defendant, the Seaboard Air Line, as alleged by the plaintiff? Answer: Yes.
6. Is the plaintiff's cause of action barred by the statute of (8) limitations? Answer: No.
7. What damage, if any, is the plaintiff entitled to recover? Answer: $6,075. There was evidence to support the finding by the jury that the injury in 1903 caused the death of the intestate, and this is practically conceded by the defendant.
It is, however, earnestly insisted that there was no evidence of fraud or undue influence in procuring the execution of the release set up as a defense.
No presumption of fraud arises from the relation of employer and employee, "but it is recognized by the courts that the employer has great *32
influence in determining the conduct of the employee, and may use it to his injury." King v. R. R.,
The plaintiff relies upon circumstantial evidence to prove fraud and undue influence, and as was said by Justice Brown in the matter ofEverett's Will,
(9) "Undue influence is generally proved by a number of facts, each of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence."
Let us, then, examine the circumstances connected with the execution of the release. The intestate was in the employment of the defendant when the release was executed, and wished to continue the employment. He was injured on 1 December, 1903, by a blow on the back of the head, and while the jury finds that he had sufficient mental capacity to execute a release, it was in evidence that he had trouble with his head continuously after the injury. He accepted $75 in settlement for an injury which finally resulted in death.
The settlement was made under an agreement to pay him for his lost time (the claim agent of the defendant testifies to this), and he was at that time earning from $90 to $95 a month, and according to the evidence of the plaintiff, lost two and one-half months.
The evidence does not disclose that any one was present when the release was executed, except the claim agent of the defendant, and he made conflicting statements as to his meeting with the intestate, saying: "I met him by appointment. He sent word that he wanted to see me. I did not meet him by appointment. I did not send for him to come and see me. I met him on the hotel porch at Hamlet by accident."
The conditional release was executed on 27 December, 1903, conditioned to accept $75, if paid within thirty days, under an agreement to pay for lost time, when there was due him then, computing at the rate *33 of $90 per month, $81, and the time he would lose could not then be ascertained, as he had not resumed work.
The sum of $75 was not paid within the thirty days, but the intestate stood by the agreement, and at the end of two months and seventeen days, while still unable to work, executed a full release for $75, under the same agreement, the defendant says, to pay for lost time, when his wages alone would, at that time, have amounted to $231, not considering damages for mental and physical suffering and for reduced capacity, for which the defendant was liable, if for anything.
We have, then, a full release executed upon the payment of less (10) than one-third of the amount agreed to be paid, and when the most important element of damages was not then taken into consideration — mental and physical suffering and reduced capacity.
It was executed by an employee who was, at the time, suffering mentally and physically from his injury, and who wished to retain his place with the defendant, and when no one was with him except the claim agent of the defendant, who made contradictory statements about his meeting with the intestate.
It would seem that one of two conclusions must follow, if the jury accepted this evidence: that the intestate did not have sufficient mind to execute a release, or that he was improperly influenced.
The jury has adopted the latter solution, and in our opinion there was evidence to support it.
In King v. R. R.,
The finding of the jury that the release was procured by fraud and undue influence, rendered upon competent evidence, makes it unnecessary to consider the effect of a valid release executed by the intestate on the plaintiff's right of action.
The remaining question presented by the appeal is the effect of the lapse of time between the injury to and the death of the intestate.
The right of action in favor of the intestate to recover damages for personal injury was barred by the statute of limitations of three years at the time of his death, and the question is presented, whether this can avail the defendant in an action by the administrator to recover damages for death, the result of the same injury.
Ordinarily, the bar of the statute is a good defense against the administrator, if available against the intestate, but this is because the administrator succeeds to the rights of the intestate, derives his title from him, and is endeavoring to enforce a right which belonged (12) to him, and if no such relation exists in a given case, there would seem to be no good reason for admitting the defense.
The right to recover damages for personal injury belonged to the intestate, and terminated at his death, while the right to recover damages for wrongful death never belonged to him, and did not exist until death. A recovery in an action for personal injury belongs to the estate of the intestate, but a recovery for death is no part of the assets of the intestate.
The two rights of action have no common source, one being under the principles of the common law and the other the creature of statute. The *35 administrator sues, not because of any privity between him and the intestate, but for the reason that the statute designates him as the party plaintiff, and he is substantially a statutory trustee.
This Court said, in Hood v. Telegraph Co.,
If there is no privity between the administrator and the intestate as to this cause of action, and the former succeeds to no rights of the other, it is illogical, as it appears to us, to hold that the failure of the intestate to sue for personal injury will bar the right of the administrator to recover damages for death, when the first right of action could not pass to the administrator and the second did not exist until death.
It would be, in effect, an adjudication that the second cause of action was barred before it came into existence.
The weight of authority elsewhere is, we think, in support of the position that the action is not barred. *36
In Robinson v. R. R., Appeal Cases (1892), p. 481, it was held by the Privy Council, on appeal from the Supreme Court of Canada, "that the Civil Code of Lower Canada does not make it a condition precedent to the right of action given by section 1056 to the widow of a person dying as therein mentioned, that the deceased's right of action should not have been extinguished in his lifetime by prescription under section 2262 (2). The death is the foundation of the right given by the former section, which is governed by the rule of prescription contained therein and is exempt from the rule of prescription which barred the claim of the deceased."
In Hoover v. R. R.,
In German Am. Trust Co. v. LaFayette Box Co., 98 N.E. Rep., 874, the appellate court of Indiana held that, "The foundation of the right given by Burns' Ann. St., 1908, sec. 285, providing that if one's death is caused by the wrongful act of another, his personal representative may sue therefor, if he, had he lived, might have sued for an injury for the same act, and the action shall be commenced in two years, is death; and the limitation for the action thereon is two years from the death, unaffected by decedent's action for his injuries being barred before his death."
In L. and N. R. R. Co. v. Simrall's admr., 104 S.W. Rep., 1012, the Supreme Court of Kentucky said of this question: "It is strongly insisted for appellant that the court erred in sustaining appellee's demurrer to its pleas of the statute of limitations; it being the contention of counsel that no right of action exists for causing the death of a person where no right of action for the injury causing the death exists at the time the death occurs, and, further, that neither section 241 of the Constitution of Kentucky nor section 6 of the Kentucky Statutes of 1903 was intended to give a right of action for causing the death of a person, unless a right of action for the injury existed at the time of the death. The argument advanced by learned counsel for appellant is that, as section 2516, Ky. St. 1903, which provides, `An action for an injury to the person of the plaintiff, or his wife, child, ward, apprentice, or servant, or for injuries to person, cattle or stock, by railroads or any company or corporation . . . shall be commenced within one year next after the cause of action accrued, and not thereafter,' applies to actions for injuries resulting in death, as well as those which do not result in death, the statute runs in each case from the time the injury was inflicted. It is further argued that the starting point is the same in each case, and that if, in the case of an injury subsequently resulting in the loss of a leg, the statute runs from the date of the original injury, and not from the loss (16) of the leg, so, in the case of any injury subsequently resulting in death, the statute runs from the date of the original injury, and not from the death. It is also urged that any other construction of the *38 statute than that contended for by appellant would lead to injustice and oppression, for the reason that if an administrator may maintain an action for causing the death of his intestate, where the death did not result until the lapse of ten or fifteen years from the time the injury was inflicted, then he may recover, although his intestate could not do so, if living, for the injuries received, and that, too, very probably after many of the witnesses have died or disappeared, and after the circumstances surrounding the infliction of the injury have faded from the memories of those by whom it was witnessed. Though plausible, the foregoing argument is unsound. Hardships may result in exceptional cases from the application of any statute or legal principle, however salutary the operation of either in general. . . . In the first case, the cause of action is asserted by the person injured, or his administrator, and it arises out of and is for the injury received. It therefore accrues from and at the time of the infliction of the injury; hence the statute then begins to run. In the second case, the cause of action does not accrue until the death of the person injured occurs, because the action is not for the injury sustained by the intestate, but for the death resulting from the injury, which is an independent and distinct grievance, created by statute, for which the personal representative alone may sue. This being true, the statute of limitation begins to run at the death and with the accrual of the cause of action. It is an indisputable rule that the statute of limitation can never begin to run until the cause of action accrues."
In Nestelle v. Nor. Pac. R. R., 56 F. R., 261, the plea of the statute was denied, the Court holding: "The statute of limitations begins to run against the statutory right of action for an injury resulting in death only at the time the death occurs, although that event takes place long after the time of receiving the injury."
(17) In W. and A. R. R. v. Bass,
In R. R. v. Clarke,
The diligent and learned counsel for the defendant has collected all of the cases holding to the contrary.
Robinson v. R. R., 54 A. and E. R. R. Cases, 49, by the Supreme Court of Canada, was, as we have seen, reversed on appeal.
The two Alabama cases, Williams v. R. R.,
In the first of these cases the Court says: "The object of the statute (section 1751, Code 1896), as we understand it, was to continue the cause of action which the person injured had — and which he had not enforced, but might have enforced had not death intervened — for the benefit of the legal distributees of his estate; and to enable the distributees to obtain their damages, resulting from the same primary cause, and not to create an entirely new and additional right of action, although the mode of estimating the damages might be entirely different from that employed had the action been brought by the employee. `In the view we take of the statute, the right to be enforced is not an original one, springing into existence from the death of the intestate, but is one having a previous existence, with the incident of survivorship, derived from the statute itself.'"
The Circuit Court of Appeals adopts this construction, the injury causing death in that case having occurred in Alabama.
Kelliher v. R. R.,
We are, therefore, of opinion, on reason and authority, that the cause of action is not barred by the statute of limitations.
No error.
Cited: Edwards v. Chemical Co.,