Gibbs v. City of Hannibal

82 Mo. 143 | Mo. | 1884

Ray, J.

On June 27th, 1877, George L. Crosby with his wife and their two infant children, in a vehicle crossing a bridge over a stream on a public street in the city of Hannibal, was precipitated into the stream by a fall of the bridge, alleged to have been caused by the negligence of the defendant. By reason of this casualty the family perished. It is sought to be alleged that Mrs. Crosby survived her husband and two children, and that while so surviving a cause of action vested in her for the death of her husband, •and that a cause of action vested in her for the death of each of her said two children. On December, 24th, 1877, her administrator, this plaintiff, sued defendant on each of said three causes of action. There are three counts. The first for the death of the husband, O-eorge L. Crosby; the second for the death of the female child, Mattie Q. M. Crosby, and the third for the death of the male child, Ray Crosby. The action was brought in the Hannibal court of common pleas. A change of venue was then taken to the Ralls circuit court, where the case was tried.

It is not necessary, we think, to set out the amended petition, which is very lengthy, in order to present what we regard as the controlling questions in the case. The suit is brought by the administrator of the wife to recover for the death of her husband and two minor children, and, also, for special damages to property, and burial expenses alleged as resulting therefrom, occasioned by the wrongful act, neglect and default of the city of Hannibal in negligently constructing and maintaining a bridge over a certain water course in said city. The defendant filed a general demurrer to the petition for the reason that it did not state facts sufficient to constitute a cause of action which was sustained by the circuit court and upon refusal of plaintiff to amend judgment was entered thereon for the defendant, and the case appealed to this court. The propriety of this ruling is the only question before us.

The petition, we take it by any fair construction, is based upon-sections 2121, 2122 and 2123 of the revision of 1879, or, as it is popularly called, the damage act. The two leading questions presented by the demurrer are first: The right of the plaintiff to maintain the action. Second, the right in this action to recover for damages to property alleged to have been occasioned by the falling of the bridge, and the death of the husband consequent thereon. In the case of Proctor v. H. & St. J. R. R. Co., 64 Mo. pp. 119, 120, this court speaking of sections 2,3 and 4 as then numbered in the damage act, 1 Wag. Stat., pp. 519, 520, and, which correspond with sections 2121, 2122 and 2123 of the revision of 1879, uses this language; “ It is conceded by all that the third section of the act was only designed to transmit a right of action, which but for the section would have ceased to exist, or would have died with the person; in other words, that under section three whenever a person dies from such wrongful act of another as would have entiled the person to sue had he lived, such cause of action may be maintained by certain representatives of the deceased, notwithstanding the death of the party receiving the injury. It creates no new cause of action but simply continues or transmits the right to sue, which the party whose death is occasioned wouldhave had, had he lived. It is not only a right transmitted, but it is restricted by limitations as to the persons who arc to enjoy the right, the time within which it is to be enjoyed, and the amount of damages to be recovered. Section 4 provides that all damages accruing under section 3 shall be recovered by the same parties, and in the same manner as is provided in section 2, and in every such action the jury may give damages not exceeding $5,000. This section in connection with section 2 designates the parties to whom this right is transmitted, and also the time within which it is to be exercised.”

In McNamara v. Slavens, 76 Mo. 330, 331, this court treating of the same subject uses this language: “Neither the husband, nor wife, nor children, had at common law, an action for the death of the husband, or wife, or parent, under the circumstances mentioned in sections 2121, 2122. It is a cause of action created by the statute, and no one can sue unless he bring himself within its terms.” Section 2123 provides that all damages accruing under section 2122 shall be sued for and recovered by the parties named in section 2121, that is, 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; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment, or if either of them be dead then by the survivor. These are the only beneficiaries who can maintain such an action. If in any case there be no such person, no suit can be brought by any other person. By the statute the action survives only to the parties named. They alone are the beneficiaries of the statute and it was never intended that such action should survive to the executor or administrator of any one of the beneficiaries named. It is a right personal to the beneficiary, and does not survive to his personal representatives. In the case at bar all the beneficiaries within the purview of the statute perished together in one common disaster and there was no person left to whom the action could survive. It follows that this action cannot be maintained by the present plaintiff who is the administrator of the wife. Under the statute he has no standing in court.

As to the other question, we think it quite manifest that the damage act, or sections 2122, 2123, supra, have no reference to injuries or damages to property of the deceased, but only to personal injuries and such as the injured party, if living, might have recovered and such as the jury may deem fair and just with reference to the injury necessarily resulting to such survivor from such death. Injury or damage to property, as such, is not within the contemplation of the damage act and, consequently, no recovery can be had in such an action for such injury or damage. Section 96 of the administration law has reference exclusively to wrongs done to the property rights or interest of another and by section 97 of same law do not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on tire case for injuries done to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. If any injury or damage was occasioned to the property of the husband in this case by the fall of the bridge occasioned by the negligence of the defendant corporation, the action therefor, if any, by operation of section 96 of the administration law, supra, survived to the administrator of the husband, if to anybody, and not to that of the wife* Such is the express import of section 96, supra. That section does not contemplate the injuries and damages, or the-actions provided for by the damage act.

The latter survives by special statute, contrary to-the common law and only to the parties or beneficiaries-named in the special statute. Various other questions have been discussed and numerous cases cited, but we deem them unnecessary to the disposition of the case.

It follows, therefore, that there was no error in the ruling of the circuit court in sustaining the demurrer of defendant, and its judgment is, therefore, affirmed.

All concur.