103 N.W. 412 | N.D. | 1905
The plaintiff brought this action in his individual capacity and right to recover damages from the defendant for the alleged negligent killing of his son, Walter Harshman, a boy 10 years of age. The complaint alleges, among other things, that the deceased was in good health; that the plaintiff was entitled to his services and earnings until his majority; and that said services and earnings, after deducting the cost of his maintenance, were of the value of $2,000, for which sum he demanded judgment. At the opening of the trial counsel for defendant objected to the introduc
The view' we -have taken of this case makes it necessary to consider but one question, and that is whether the complaint states a cause of action in plaintiff’s favor. Counsel for defendant contend that it does not, and we fully, agree with this contention.' It may be said at the outset that whatever right of recovery exists for injuries caused by the negligent killing of another is created by legislative authority only. At common law no such right of recovery existed. This is well settled. “The authorities are so numerous and so uniform on the proposition that by the common law no civil action lies for an injury which results in death that it is impossible to speak of it as a proposition open to question. It-has been decided in many cases in the English courts and in many of -the state courts, and no deliberate, well-considered decision to the contrary is to be found.” Insurance Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580; Carey v. Railway Co., 55 Mass. 475, 48 Am. Dec; 616, and cases cited in note, page 633; also Am. & Eng. Enc. Law (2d Ed.) vol. 8, p. 855, and cases cited.
The statutory provisions upon which the plaintiff’s right to maintain this action depends are contained in chapter 36, Code Civ. Proc. (sections 5974-5979, Rev. Codes 1899, inclusive),- It is patent upon an inspection of these sections that no cause or right of action is given to a, surviving father. Section 5974 .declares that.those who-wrongfully or negligently cause an injury resulting in the death'.of another are liable notwithstanding the death of the person injured. Section 5975 fixes the measure of their liability by declaring that “in such actions the jury shall give such.damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery.” Section 5976, which
It is contended by plaintiff, However, that inasmuch as he is the sole heir, and as such is entitled to any sum which may be lawfully recovered, -the verdict which has been returned in his fav-or, even though he has no right under the statute to maintain the action,
It may be, and probably is, true, as counsel for plaintiff contend, that the defendant’s general objection to the introduction of evidence,'as well as the ground stated for granting a directed verdict, did not definitely apprise the trial court or opposing counsel of the nature of the objection now being considered; but that does not affect our right to consider it. This is not a case where a cause of action is substantially but defectively stated, and in which the de
No 'amendment can make the present complaint state a cause of action in plaintiff’s favor. The only way it can be made to state a cause of action in favor of any one is to substitute the personal representative of the decedent as plaintiff, and that cannot be done under the guise of an amendment, for that would not continue the •existing suit except in form, “but would create and institute a new suit or a new question, and in a controversy between different parties.” Lower v. Segal, 60 N. J. Law, 99, 36 Atl. 777; Lowell v. Segal (N. J. Sup.) 34 Atl. 945.
This case is not one of defect of parties or of want of legal capacity to sue. It is purely a want of a cause of action. The objection that a complaint does not state a cause of action “calls in question not only the sufficiency of the facts stated in the complaint to constitute a cause of action, but -also the right or authority of the particular plaintiff to institute or maintain a suit upon such a cause of action:” Frazer v. State (Ind. Sup.) 7 N. E. 203; Tipton County v. Kimberlin (Ind. Sup.) 9 N. E. 407, and cases cited.
It follows that the order appealed from must be reversed, and the action dismissed; and it is so ordered.