102 Wis. 373 | Wis. | 1899
That the complaint attempts to state an action ex delicto seems too plain for discussion. The allegations, in brief, are that defendant made false representations whereby deceased, in her lifetime, was induced to execute a mortgage of $1,300, which, being foreclosed by others than the defendant, resulted in the lbss of the mortgaged property of value $2,500, whereby she suffered damage in that sum. On the other hand, the complaint contains no allegations sufficient to constitute a cause of action in contract. In many cases in this court the allegation of the wrongful obtaining or withholding of money from the plaintiff has been held not inconsistent with a contract character of the action; but in every such case that character has been saved by the fact that the remedy prayed was that to which an implied contract entitled the plaintiff, namely, repayment of the money actually received or retained by the defendant. Among these cases, to some of which appellants call our attention, is Van Oss v. Synon, 85 Wis. 661. There the court, by ORtos, J., says: “In actions at law the demand for judgment is vastly important in determining the nature of the action, as between tort and contract, or as between trover and moñey had and received.” In Fifield v. Sweeney, 62
Such considerations are wholly wanting here. The prayer is not for the recovery of that which the defendant has obtained from the plaintiff by the alleged misrepresentation, but the damage which she has suffered by reason of his fraud, obviously far exceeding the amount received by him, which amount is not set forth. Again, the complaint is obviously not framed upon, and not sufficient to support, an action ex contractu for breach of the alleged promises of defendant to perform certain services for plaintiff. Her recovery for such breach would be for what she suffered by the failure to receive those services, as to which no allegation whatever is made, and which bear no relation to the damages set forth and sought to be recovered.
This, then, being a tort action for deceit to recover general damages caused by the fraud, and not to recover back specific property obtained by fraud, it is vigorously debated whether or not it survives. The question is squarely answered in the negative by this court in John V. Farwell Co. v. Wolf, 96 Wis. 10, wherein it is pointed out that our statute for the survival of actions, namely, sec. 4253, R. S. 1873, is confined, so far as it relates to this subject, to “ actions for damages done to real and personal estates; ” that such statute is taken from Massachusetts, by way of Michigan, in both of which it received a restrictive construction, such as to exclude such torts as this, and a construction which wholly differentiated it from the Hew York statute, which provided for the survival of “ actions for all wrongs done to
"We are urged now to recede from the conclusion reached in John V. Farwell Co. v. Wolf, and to find authority for the survival of such an action as this in sec. 3252, R. S. 1878, which provides that “ for wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, an action may be brought by the executors or administrators of the person injured after his-death against such wrongdoer, and, after his death, against his executors or administrators.” It is true that the expression, “ wrongs done to the property, rights or interests,” is-the same as that used in the New York statute of survival, which there has been held broad enough to include injuries-to mere property rights, as distinguished from injury to property itself. The question, however, is as to the scope of sec. 3252,— whether it is to be treated as a survival statute, and as additional to and independent of sec. 4253. Such condition of things would be almost an anomaly in careful statute-making. Sec. 4253 is apparently exhaustive of the subject, and occurs in a chapter under the title of “ Survival of Actions,” and has so appeared continuously since the revision of 1849, during all of which time sec. 3252, with some modifications immaterial now, has existed under a chapter entitled “ Actions and Proceedings by and against Executors,” etc. Such classification of these two sections would seem to
In Noonan v. Orton, 34 Wis. 259, the court again treated chapter 135 (sec. 4253) as the exclusive statute of survival, and said: “ In this state the list of actions which survive is materially enlarged by statute (R. S. ch. 135). But in this
In Farrall v. Shea, 66 Wis. 561, 565, which was an action of ejectment, both sections 3252 and 4253, and some other sections, were vigorously pressed upon the court as authorizing survival. The court (Orton, J.) said: “ Our statute on this subject (sec. 4253, R. S. 1878) is very strict and clear, leaving nothing to intendment beyond what is expressed in it. [Quotes section.] This is very explicit. When the legislature provided that actions for the recovery of personal property should survive, it would have been easy and highly proper to have added ' or real property.’ . . . There is no other statute which can be tortured into any such amendment of the common law.” He then proceeds to declare the rule of strict construction, and that the expression in that section of certain actions excludes all others.
In Cotter v. Plumer, 72 Wis. 476, which was an action for trespass for cutting timber, brought against the administrator of the trespasser, the court held that but for sec. 4253 the death of the trespasser would have terminated the action and the right of action as well; that by virtue of that section and sec. 4254 both the action and the right, to the
John V. Farwell Co. v. Wolf, 96 Wis. 10, as we have said, again declares sec. 4253 to be the statute measuring the survival of actions, and denies the claim made in that case that an injury such as this could survive by virtue of the New York authorities. An examination of the briefs in this case shows that neither sec. 3252 nor sec. 4253 was specifically called to the attention of the court, but that it was contended that actions for injuries to property rights, as distinguished from the property itself, survive; and it cannot be said, from examination either of the briefs or of the opinion, that both of these sections were not before the court and duly considered in reaching its decision.
In Schmidt v. Menasha W. W. Co. 99 Wis. 300, both sections 3252 and 4253 were pressed upon the court as authorizing the survival of the widow’s right to damages for her husband’s death; but the survival was denied by the court on the authority of Woodward v. C. & N. W. R. Co. 23 Wis. 400, the court declining to consider the language of sec. 3252 and impliedly treating it as giving no 'rights of survival, the
Thus, it appears that through a period of fifty years, with the subject more or less directly presented to the court in some ten or twelve vigorously contested cases, there has been no departure from the view that sec. 4253 is the statute which accords the quality of survival to actions not surviving at common law, and that sec. 3252 accords no such right. During this period the entire body of the statutes has been twice carefully revised, with no change in the arrangement or language of these sections to indicate legislative disapproval of the view taken by the court. Several times those sections have been verbally amended to enlarge the scope of one or the other, but never so as to intimate that the view taken by the court as early as 1868, in Woodward v. C. & N. W. R. Co., and frequently followed since, was not in accord with the legislative purpose. Whatever might be our view, as an original question, of the relation between these two sections, it would be subversive of the whole doctrine of stare decisis, by which both property rights and litigation must be guided, to now depart from the position so persistently maintained, whether always definitely expressed or not, and to hold that any action for a wrong done to property rights or interests of another shall survive, even though it do not come within the language of sec. 4253. We feel constrained to hold, as we think the. court has repeatedly held before, that sec. 4253 is exclusive upon the subject, and that an action of deceit to recover pecuniary damages not to specific property does not survive the death of the party injured, and, as a result, that the complaint in this case states no cause of action.
By the Court.— Order sustaining demurrer is affirmed.