Killian v. Southern Railway Co.
38 S.E. 873
N.C.
1901
Check Treatment
Clare, J.

This is an action by a father for the negligent killing of his son. Upon the evidence the plaintiff was nonsuited and appealed, but in this Court the defendant interposed а preliminary plea ore tenus to dismiss the action because the complaint dоes not state facts sufficient ‍​​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌​​‌‌‌‌​​‌‌​‌‌​‌‌‍to constitute a cause of action. Rulе 27 of this Court; Manning v. Railroad, 122 N. C., 825.

The Code, section 1498, provides that whenever “the death of a рerson is caused by a wrongful act, neglect or default of another,” an action therefor may be brought by “the executor, administrator or colleсtor of the decedent.” Section 1499 provides that “the plaintiff in such actiоn may recover such damages as are a fair and just compensatiоn for the pecuniary injury resulting from such death,” and section 1500 provides for the application and distribution of such recovery.

At common law this action could not have been maintained. Baker v. Bolton, 1 Camp., 493, in which Lord Ellenborough *262 tersely stated the doctrinе of the common law to- be: “In a civil suit, the death of a human' being ‍​​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌​​‌‌‌‌​​‌‌​‌‌​‌‌‍can not bе complained of as an injury.” Where the injury subsequently resulted in death the actiоn abated — actio personalis moritur cum persona. Hence, though many courts doubted the soundness of the reasoning as apрlied to this class of cases, it was unL formly held in England and this country that the right of action ceased upon the death of the injured party. 8 Am. and Eng. Enc. (2d Ed.), 855, and a pagе of authorities there cited, especially Cary v. Railroad, 55 Mass., 475, 48 Am. Dec., 616; Eden v. Railroad, 53 Ky., 204; Hyatt v. Adams, 16 Mich., 180. In Insurance Co. v. Brame, 95 U. S., at page 756, it is said: “The authorities are sо numerous and so uniform to 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 рroposition open to question. It has been decided in many cases in thе English courts and in many of the State courts, and no deliberate, well-considered decision to the contrary is to be found.”

It is true the father was entitled to the services of his son, if he had lived, till his majority, but when the death of the son ensued, the cаuse of action abated. It is said in Hyatt v. Adams, 16 Mich., 180, upon a review of the English authorities (Co oley,. J., concurring) that one case, and only one (Baker v. Bolton, supra), held that at common law the father could recover after the death of the child, even for the value of his services from ‍​​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌​​‌‌‌‌​​‌‌​‌‌​‌‌‍the time of the injury to the date of the death, but, as here, the death wаs instantaneous, that case does not apply.

In England this rule of the common law was changed by Lord Campbell’s Act, 9 and 10 Viet., which gave the right of action fоr injuries sustained by neglect or wrongful act of another, notwithstanding the death of thе person injured. That Act began by expressly reciting that at common law *263 an action could not be maintained in sucb cases. Tbis Act bas been copiеd, witb many variations, in the States of the Union, but in nearly every instance such acts give the right of action to the personal representative. It has been, as a consequence of what has been said above, held that the statutе confers a new right of action which did not exist before, and must be strictly followеd. ‍​​‌‌‌‌​‌‌‌​‌‌‌‌​‌‌​‌‌​​‌​​‌​‌‌​‌​​‌‌‌‌​​‌‌​‌‌​‌‌‍8 Am. and Eng. Enc., 858 (2d Ed.). Hence, where the right of action is given to the personal reрresentative “the parent can not maintain' it, even when the statute exрressly provides that the recovery shall be for his or her benefit. In such cases only the executor or administrator can sue.” 8 Am. and Eng. Enc. (2d. Ed.), 891, and cases cited upon that and two following pages.

In this State the remedy was first given by statute 1854, chаpter 39 ; Rev. Code, chapter 1, sections 8, 9 and 10, which, with some modifications, аre now sections 1498, 1499 and 1500 of The Code. By these, as already said, the action must be brought by the personal representative.

The plaintiff’s counsel citеd us to no case in this State, except Russell v. Steamboat Co., 126 N. C., 961, in which the point does not arise аnd was not decided. The cases cited by them from other States are either recoveries for loss of service after the death of the child and uр to the death (8 Am. and Eng. Enc., 856), or where the statute confers the right of action uрon the parent. 8 Am. and Eng. Enc., 895. In this State it has' been held, as in all others, that the right of action did not exist at common law. Collier v. Arrington, 61 N. C., 356; Howell v. Commissioners, 121 N. C., 362; Best v. Kinston, 106 N. C., 205. The right conferred by statute is plainly given to the personal representative only. Let it be entered

Action dismissed.