16 Colo. 455 | Colo. | 1891
delivered the opinion of the court.
The several assignments of error present for determination but a single question: Did the cause of action stated in the amended complaint die with the person of Edward S. Kelley, or did it survive to his personal representative?
The maxim, “ Actio personalis moritur eum persona,” is as old as the common law itself. Nevertheless, for more five hundred years, or since the reign of Edward the III., the rule has been the subject of legislative modification both in England and America. It would serve no useful purpose to attempt to trace the various changes of the ancient rule. The general rule which has prevailed for many years in this state is that actions at law do not die with the person; it is expressed in the following statute:
“ All actions at law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors and administrators.” K. S. 1868, p. 682; Gen. Laws 1877, p. 978; Gen. Stats. 1883, sec. 3635; Mills’ Annotated Statutes, sec. 4810.
At common law the question whether a right of action survived to the executor or administrator in a given case depended in most instances upon the form in which the action might or must be brought to obtain relief. The" general'rule was that if an action ex contractu might be sustained, the right of action survived; but if an action •ex delicto must be resorted to, the right of action did not J survive. 1 Ohitty’s Pleading (16th Am. ed.), p. 77 et seq./ Angelí on Carriers, sec. 435.
Though the forms of civil action have been abolished in this state, it is often convenient and sometimes necessary to refer to them in construing statutes enacted before the
The act of 1872 (Session Laws, p. 117), concerning damages to be awarded where the death of a person has been caused by the wrongful act of another, etc., was referred to in argument as having some bearing upon the construction to be given to the act above quoted, which is first found in its present form in the revision of 1868. The two acts are not in pari materia. A comparison will show that they have no legal connection or relation to each other. The act of 1868 was to prevent certain actions or causes of action ab-eady accrued from abating by reason of the death of either of the parties, without regard to the cause of such death. ■ The act of 1872 created a new cause of action, to wit, the death itself. The act was not to prevent any cause or causes of action from abating; on the contrary, the cause of action provided for in the act did not accrue until death had already ensued. The language of the act
The present action is not to be confounded with the statutory remedy provided by the act of 1811 (Gen. Laws, p. 342). That act is a substitute for the act of 1812, supra. It provides for the recovery of damages resulting from the death of the party injured under certain circumstances, in case the death were caused by the wrongful act, negligence or default of another. In this case, as the complaint expressly states, the death of said Edward S. Kelley was not caused by the negligence of the defendant; neither is action brought to recover the damages resulting from his death to thfe parties entitled to sue under the act of 1811. On the contrary, the action is brought to recover only the pecuniary damages resulting to the deceased himself, and which are alleged to have accrued prior to his death. 2 Thompson on Negligence, p. 1285; Needham, Adm'x, v. Grand Trunk, R. R. Co., 38 Vt. 294; Barley v. Chicago & Alton R. R. Co., 4 Bissell, 430.
By stipulation of counsel, we are asked to consider and determine whether certain matters, if pleaded, would constitute a sufficient defense to the amended complaint. As the matters thus stipulated were not made a part of the record in the case in the court below, this court cannot properly take cognizance of them upon this review. See Molandin, v. Railroad, Co., 3 Colo. 173; also McKenzie v. Ballard, 14 Colo. 426. If we were to yield to the stipulated request of counsel in this instance, it would be likely to prove a most dangerous and troublesome precedent. Such a practice would enable parties to obtain the opinion of this court upon controverted legal questions in advance of their adjudication or presentation in the nisiprius courts. This would not only be contrary to the spir't and letter of our judicial system, but would tend to greatly increase the burden upon the already overburdened dockets of this court.
Reversed.
