Melzner v. Northern Pacific Ry. Co.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought by A. B. Melzner, as administrator of the estate of Omer Haddox, deceased, to recover damages for personal injuries which resulted in death. On January 20, 1909, at Whitehall, Montana, Omer Haddox, a minor about fourteen years of age, was struck by a locomotive driven by the defendant Barry and operated by the defendant railway company. The injury resulted in the death of the boy. The ■ complaint is drawn upon the theory that, after Engineer Barry discovered the peril in which the boy was situated, he still had a last clear chance to avoid injuring him, but failed to exercise ordinary care. The trial resulted in a verdict and judgment in favor of plaintiff, and from that judgment and an order denying them a new trial the defendants have appealed.

1. It is insisted that the complaint does not state a cause of action, and the familiar rule announced by this court in Martin v. City of Butte, 34 Mont. 281, 86 Pac. 264, is invoked. In that case we said: “It will not do to say that it is sufficient that the complaint states a cause of action against the defendant. To support this judgment, the complaint must state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. ” It is urged that the rule is peculiarly applicable in the present instance, because this action is sought to be prosecuted by the administrator of the estate of the deceased minor. Appellants insist that any action which might be maintained must be brought by the parent or guardian of the minor, under section 6485 of the Revised Codes, which provides: “A father, or in case of his death, or- desertion of his family, the mother may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. * * * ’ ’ Assuming, as we may, that in so far as section 6485 refers to actions for damages for injuries to minors which do not result in death, it does not create any new right of action, but only gives recognition to the right of action existing at common law, and that, so far as it deals with actions for damages for the death of minors, it creates new rights of action which were unknown to the common law, and follows, in substance, if not in form, the English statute known as Lord Campbell’s Act, we may consider the rights mentioned so far as they are involved here.

It is very clear that whether the parent prosecutes the common-law or statutory action his right is one personal to him, the purpose of which is to enable him to recover damages by way of compensation for the loss of the minor’s services to which, as parent, he would be entitled until the boy reached majority, or, possibly, until he was emancipated. (Durkee v. Central Pac. R. R. Co., 56 Cal. 388, 38 Am. Rep. 59; Hedrick v. Ilwaca R. & N. Co., 4 Wash. 400, 30 Pac. 714.) But, whatever right of action the parent has, it is altogether different from the right which is sought to be enforced in this instance, and therefore the provisions of section 6485 which deal with the parent’s right are not applicable here, and need not be considered further. It is also equally plain that the provisions of section 6485 which refer to the right of a guardian to sue for damages for the death of his ward have no application, for this action is not of that character. In their reply brief counsel for appellants properly characterize this action now before us as “ ‘the common-law action which he [the minor] had for the injuries which he received, and which accrued to him at the time of his injuries, and remained available to him until the instant of his death’ [and], which the plaintiff, as the administrator of the deceased minor, now seeks to prosecute,” etc. (Johnson v. Butte & Sup. Copper Co., 41 Mont. 158, 108 Pac. 1057.) Our inquiry concerning the meaning to be given to section 6485 is limited to the provision with reference to the right of the guardian to maintain an action for injury to his ward.

If this action was one for damages for injuries which the minor survived, no difficulty would be encountered; for at common law the infant plaintiff sued by guardian ad litem, while under our statutes he appears by his general guardian or his guardian ad litem. (Rev. Codes, sees. 3599, 6481; Flaherty v. Butte El. Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pae. 416.) The fact that this action is brought to recover damages for .injuries which resulted in the death of the minor, and that the action was not commenced until after the minor’s death, presents the difficulties which confront us. Counsel for appellants insist that in an action of this character the provisions of section 6485 are controlling, and the action must be prosecuted by the guardian, the only logical conclusion from which is that, if at the time of his death the minor did not have a guardian, the action cannot be maintained at all, and Bond v. United Railroads, 159 Cal. 270, Ann. Cas. 1912C, 50, 113 Pac. 366, is cited as apparently approving such a conclusion. However, an examination of the ease just cited discloses that the only controverted question before the California court for decision related to the measure of damages in an action by a mother for the death of her son, and that the observation upon section 376 of the California Code of Civil Procedure was pure dictum. In the elaborate briefs submitted by counsel not a case is called to our attention which determines the question now under consideration, and we doubt whether a ease of that character can be found. California, Indiana, Washington, and probably other states, have statutes identical with, or similar to, our section 6485 above, but apparently the particular question now raised by appellants has not been considered or determined.

We preface our remarks by saying that we think the evidence sufficient to show that Omer Haddox survived his injuries for [1] an appreciable length of time, and therefore he had a cause of action for damages for the injuries sustained, assuming for the present that his injuries were caused proximately by the negligence of the defendants. (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960; Kellow v. Central Iowa Ry. Co., 68 Iowa, 470, 56 Am. Rep. 858, 23 N. W. 740, 27 N. W. 466.) If there is any right of action disclosed by this complaint, it is the identical right which Omer Haddox had at the time of Ms death, but to enforce which no action had been commenced during his lifetime. At common law such a right of action literally died with the decease of the injured party (Dillon v. Great Northern Ry. Co., above), and could not thereafter be revived or prosecuted by anyone. That rule is in force in this state to-day, unless it has been abrogated by statute. It is clear that the rule was not affected by section 6485. That section is not in any sense a survival statute, and cannot be appealed to by anyone as authority to maintain an action of this character. But section 6494, Revised Codes, provides that an action or cause of action shall not abate by the death of a party, but shall in all cases where a cause of action arose in favor of such party prior to his death survive and be maintained by his representatives, and, in case such action has' not been begun, it may be begun in the name of his representative; and, in case the action was begun prior to his death, the court on motion will permit his representative to be substituted and the action to proceed in his name. But it is most earnestly urged that this section does not effect a survival of an action for personal injury; that it applies only to causes of action which survived at common law, and many eases are cited in support of this contention:

Slauson v. Schwabacher, 4 Wash. 783, 31 Am. St. Rep. 948, 31 Pac. 329, involved only the question of the assignability of a claim for damages.

In Jones v. Miller, 35 Wash. 499, 77 Pac. 811, the court had under consideration section 5695, Ballinger’s Annotated Codes, which provides: “All other causes of action by one person against another, whether arising on contract or otherwise, survive to the personal representatives.” Standing alone, the meaning of that section would be difficult to determine; but when it is read in connection with section 703, Hill’s Code of. Washington, — a section which immediately preceded it in the original Act, — other sections of the Washington Code and the history of the legislation in that state upon the subject, beginning with the Act of 1869, it becomes apparent that section 5695 does not include actions for purely personal torts. Section 5695 deals with actions by or against administrators and executors; but in the same Code of Washington, in treating of parties to civil actions, is found section 193, which provides that “no action shall abate by death of the party, if the cause of action survive or continue.” Construing these several statutes together in the light of their history, and the correctness of the • Washington court’s conclusion is manifest at once.

In Schreiber v. Sharpless, 110 U. S. 76, 28 L. Ed. 65, 3 Sup. Ct. Rep. 423, the question presented was whether an action for penalties and forfeitures under the copyright law survives by virtue of section 955, United States Revised Statutes (U. S. Comp. Stats. 1901, p. 697). That section provides for the substitution of an administrator “in case the cause of action survives by law.” The court held that an action for penalties and forfeitures abated with the death of the wrongdoer at common law, and that section 955 does not work the survival of such an action.

In Martin’s Admr. v. Baltimore & Ohio R. Co., 151 U. S. 673, 38 L. Ed. 311, 14 Sup. Ct. Rep. 533, a statute of West Virginia modeled after Lord Campbell’s Act, and another statute whose terms are apparently conflicting, were considered. The conclusion reached was that, considering the several provisions of the West Virginia statute together, it was apparent that the legislature intended to provide the procedure only, and not to effect the survival of an action which did not survive at common law. However, there was an able dissenting opinion by Justice Harlan, the logic of which commends itself to the critical mind. The like conclusion was reached in Flinn v. Perkins, 32 L. J. Q. B. 10, where the English Law Procedure Act was construed, which contains a clause similar to that found in section 955, United States Revised Statutes, above.

In Schmidt v. Menasha Woodenware Co., 99 Wis. 300, 74 N. W. 797, a statute modeled after Lord Campbell’s Act was considered, but, since statutes of that character are not survival statutes in any sense of the term, that case is not of any moment here.

In Baltimore & Ohio R. Co. v. Bitchie, 31 Md. 191, a statute of that state enacted in 1785 (Laws 1785, e. 80) was under consideration. The statute is in very general terms, but the Maryland court held that it was not intended to prevent the abatement of actions which abated at common law, and that construction was accepted by the supreme court of the United States in Martin’s Admr. v. Baltimore & Ohio R. Co., above. Whether the Maryland court’s conclusion is right or wrong is not very material here; for in so far as it differs from our own conclusion upon our statute, we decline to follow it.

Beferenee is also made to Lynde v. Wakefield, 19 Mont. 23, 47 Pac. 5. That was an action by Mrs. Black to recover her dower interest in certain real estate, and for rents and profits. She prevailed in the lower court, and the defendant appealed, but before the cause was heard in this court Mrs. Black died, and the administrator of her estate asked to be substituted. The motion was contested upon the ground that Mrs. Black’s right of action abated wi^h her death. In determining the controversy thus raised, this court, speaking through Chief Justice Pemberton, said: “This cause was commenced under, and must be determined by, the provisions of section 22, page 63, Code of Civil Procedure, Compiled Statutes of 1887.” After referring to the common-law rule under which the action would have abated, the court proceeded: “But we think under our statute and the great weight of authority a different rule prevails in equity.” Works on equity are then appealed to, and the conclusion of the court is announced as follows: “We are therefore of the opinion under our system of jurisprudence, where we have ‘but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs which shall be [the] same at law and in equity’ (section 1, Chapter 1, Code of Civil Procedure, Compiled Statutes of 1887), and where law and equity are merged in the same tribunals, that the right to prosecute this suit for the collection of the rents and profits of the dower estate of Mary A. Black survives to her legal representative.” It is urged upon us that, if Mrs. Black’s action survived under section 22 of the Compiled Statutes, there was not any occasion for the court to appeal to the rule in equity, and with this we agree. But, if the court had studied the history of our legislation upon the subject of survival of actions, we are confident the same result would have been reached without reference to any work on equity.

It will thus be seen that not a case cited above, with the possible exception of Baltimore & Ohio R. Co. v. Bitchie, is an authority upon the proper construction to be given to a statute like our section 6494 above. The language of that section is so comprehensive and its meaning so apparent that it would seem to need no construction.

It is not the province of a court to say that the legislature did not mean what the language employed clearly indicates, unless a consideration of other provisions, or the history of the Act, makes clear a meaning contrary to that which the Act alone would seem to indicate. There is not anything in other provisions of our Codes to indicate that the legislature intended the language employed to be given a restricted meaning or a limited application, while the history of the measure very clearly indicates a contrary purpose. Prior to 1883 we had on our statute books a section which provided that an action does not abate by the death of a party “if the cause of action survive or continue.” (Section 22, First Div., Rev. Stats, of 1879.) That statute was similar to those considered in the cases above, except the Maryland and Wisconsin cases. By an Act approved March 7, 1883 (Laws 1883, p. 98), section 22 above was repealed, and in its stead was substituted the statute as we have had it ever since, and as it is found at the present time in section 6494 above. If it was the intention of the legislature that only such causes of action should survive as survived at common law, then the Act of 1883 is meaningless; for section 22 of the Revised Statutes designated the parties who might maintain any action which did survive and provided the procedure. The new Act of 1883 did nothing more, if the contention of counsel for appellants is sustained. But we are not at liberty to assume that in repealing one statute and substituting another therefor the legislature was indulging in mere idle pastime. If section 22 of the Revised Statutes of 1879 expressed the legislative will, then there was not any occasion for a substitution of another for it; and the fact that the substitution was made is evidence sufficient that the provisions of section 22 were not satisfactory. It will be observed that section 22 was not a survival statute at all. It merely -designated the parties who might pursue an action which did survive, leaving the common-law rule in full force and effect. By the Act of 1883 an entirely new rule was substituted. That Act is a general survival statute, by the terms of which in all cases where a cause of action arose in favor of a party prior to his death such cause of action shall not abate but shall survive and be maintained by the personal representative of the party. If the purpose which animated the legislature in passing the Act of 1883 was not to substitute a general survival statute for the common-law rule, then it seems impossible that any reason whatever can be assigned for the legislative action. "We are satisfied, however, that our construction is correct; that section 6494 comprehends tort actions as well as others, and that if this history of our legislation had been called to the attention of the court in Lynde v. Wakefield, above, that case would have been determined upon the statute alone.

In so far as section 6485 authorizes a guardian to prosecute an action for injury to his ward, it relates only to such an action as the minor has during his lifetime; while, in case of the death of the minor, his action or right of action survives and is to be maintained by his personal representative — in this instance by the administrator of his estate. To say that after the death of a minor his guardian may maintain an action for injuries which accrued to the ward in his lifetime involves the legal absurdity that there may be a guardian without a ward. It would seem that the death of the ward would terminate the guardianship, except for the purpose of a settlement and possibly such other proceedings as the guardian, acting as a trustee of the estate in his hands, might take. Certainly it was never intended that the guardian might maintain an action for damages arising, from the wrongful injury to the ward, and that the administrator of the ward’s estate might maintain another action for the same cause; and, since the administrator is specifically authorized to maintain the action which the minor could have maintained if he had survived his injury, it follows that, whatever meaning is to be given to section 6485, it cannot be made to comprehend an action of the character of the one before us. Just what is meant by the provision in section 6485 which gives the guardian a right of action for the death of his ward need not be determined, as it is not involved in this action. Doubtless the construction given to a similar provision by the supreme court of Indiana in Louisville, N. A. & C. Ry. Co. v. Goodykoontz, 119 Ind. 111, 12 Am. St. Rep. 371, 21 N. B. 472, is correct.

2. For the purposes of this appeal, we may agree with counsel [2] for appellants that the complaint in this action shows upon its face that Omer Haddox was guilty of negligence which contributed to his injuries. But in jurisdictions where the doctrine of the last clear chance prevails, as it does in this state, it is not fatal to a complaint that contributory negligence on the part of the plaintiff appears and a plea of contributory negligence is not a defense if the action is brought upon the theory that, notwithstanding such negligence, the defendant had the last opportunity to avoid the injury, and failed to exercise it. The rule of pleading in cases which do not invoke the doctrine of the last clear chance does not have any application in the present case, which depends entirely upon that doctrine.

For the purposes of this case we may agree with counsel for appellants that, if the negligence of plaintiff concurs with that of the defendant up to and producing the injury, no recovery can be had, for under such circumstances there could not be room for the application of the doctrine of the last clear chance; but we think the evidence in this case sufficient to go to the jury as tending to show that after Omer Haddox negligently went within striking distance of the train, the engineer had a last clear opportunity to avoid striking him.

3. But appellants further insist that the allegations of this [3] complaint are insufficient to state a cause of action based upon the doctrine of the last clear chance, and for the purposes of this appeal we may concede, without deciding, that the rule announced by the Virginia court in Hortenstein v. Virginia etc. Ry. Co. (Sup. Ct. App.), 102 Va. 914, 47 S. E. 996, is correct

and applicable here. It was there held that as to a trespasser the railway company cannot be held responsible for his injuries, unless it appears that after the company discovered his. peril it could, in the exercise of ordinary care, have avoided the injury. The Virginia court, however, was stating a rule of substantive law rather than a rule of pleading. But assume that its declaration correctly states the rule of pleading. It is but another way of saying that, after the railway company discovered the trespasser’s peril, it negligently ran him down and injured him. The particular form of expression is not of any consequence, if the charge of negligence after peril discovered is made to appear. The complaint in the present instance sets forth quite fully the facts showing the peril in which Omer Haddox had placed himself, and then alleges “that the said defendant engineer did see the boy Omer Haddox in the path of his engine, and did see that the said boy was in danger of being struck by the said engine, and that the boy was unobservant of the approach of said engine; that he then, after so seeing the boy in danger, negligently drove the said engine against the said boy, inflicting grievous bodily injury upon the said boy, from which grievous bodily injury the said boy died an appreciable time after the injury was so inflicted upon him.” We think this is sufficient to meet the requirements of the rule announced in Pullen v. City of Butte, 38 Mont. 194, 21 L. R. A., n. s., 42, 99 Pac. 290; see, also, 6 Thompson on Negligence, secs. 7447, 7466.

Upon the question whether the engineer, after discovering the [4] boy’s peril, exercised ordinary care to avoid striking him, the evidence is conflicting, and with the jury’s determination we cannot interfere. The question had to be determined by a consideration of the personnel of the witnesses, their apparent interest in the controversy, their qualifications to give expert or opinion evidence, and other matters, all properly cognizable under the generic term “credibility.”

It must be obvious to anyone that the rule announced in Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, and followed in many [5] later cases, particularly in Lynes v. Northern Pacific Ry. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 Pac. 81, to the effect that, if it appears that plaintiff’s own act caused his injury, he must show “that in doing the particular act he was moved by those considerations for his own safety which would actuate a reasonably prudent person, similarly situated, to do as he did,” cannot have any application in an action based upon the doctrine of the last clear chance; it being confined exclusively to an action in which contributory negligence constitutes a defense.

4. Touching the question of the measure of damages, counsel for appellants quote from Belding v. Black Hills & Ft. P. R. Co., 3 S. D. 369, 53 N. W. 750: “The personal representative [6] can, in our opinion, recover no damages that could not have been recovered by the deceased had he survived the injury. He cannot, under that statute, recover for the loss of the life of the deceased.” The Dakota court was considering the measure of recovery under a survival statute for injuries resulting in death in a case similar to the one now before us. "We agree entirely with the rule as stated above, which, however, is rather in negative form. The court proceeded: “The personal representative, under that section, can only recover in the same manner the deceased could have recovered had he survived the injury.” We also agree with that court in its further enunciation of the rule as stated in the affirmative. The court propounds the question, “In what manner, and under what circumstances, could the deceased have recovered had death not ensued,” and then answers as follows: “He could have recovered, in addition to his physical and mental suffering, for loss of time and employment, the expenses of medical and surgical attendance, nursing, etc., incident to the injury.” The same rule is announced by the supreme court of Pennsylvania in Maher v. Philadelphia Traction Co., 181 Pa. 391, 37 Atl. 571, in an action by the administrator of the estate of Agnes Maher, deceased, for damages for injuries which resulted in her death. The court said: “It logically follows that the damages recoverable by her personal representative should be the same as she could have recovered had death not ensued. Included therein are damages for pain and suffering up to the time of her death, and diminution of earning power during a period of life which she would have probably lived had the accident not happened. It is a mistake to suppose that the recovery in this case is for the death. It is still for the personal injury.” After quoting from Moe v. Smiley, 125 Pa. 141, 3 L. R. A. 341, 17 Atl. 229, the following: “It is idle to, say that, when a man is killed by unlawful violence, it is not an injury to his person ’ ’ — the court continues: “An element of the injury in such ease is the total impairment of the earning power, placed beyond the possibility of doubt by the death, and hence a simpler problem for the jury; but the measure of damages therefor is the same as if the party had survived.” But a reference to decisions from other states is not necessary, for the same general rule was announced by this court in Beeler v. Butte & London C. Dev. Co., 41 Mont. 465, 110 Pac. 528; and in the present instance the court very clearly directed the jury as to the proper measure of plaintiff’s recovery, in an instruction which follows almost verbatim the language of the instruction approved in the Beeler Case.

5. At the request of defendants the trial court gave an instruction (5A), but with a modification. As given, it directed [7] the jury that if after engineer Barry discovered that Omer Haddox was within, or going within, striking distance, he exercised ordinary care to avoid injuring him, the verdict should be for the defendants. The modification made by the court consisted in inserting the words “or going within.” Instead of modifying the instruction tendered, the court should have refused it altogether. The subject had been fully covered in other instructions given, one of which (3A) was sufficient in itself. 5A is not erroneous, but it should not have been given. If it served any purpose at all, it was only to confuse the jury. But, since the rule of law was so explicitly stated in instruction 3A, we must assume that the jury understood that the defendants’ duty arose only after the boy was discovered in a position of peril.

’ We have treated the questions which seem to us to demand particular attention; and, finding no reversible error, it is ordered that the judgment and order denying defendants a new trial be and they are affirmed. Affirmed.

Mr. Chief Justice Brantly concurs. Mr. Justice Smith, being absent, did not hear the argument, and tabes no part in the foregoing decision.

Case Details

Case Name: Melzner v. Northern Pacific Ry. Co.

Court Name: Montana Supreme Court

Date Published: Oct 3, 1912

Citation: 127 P. 146

Docket Number: No. 3,156

Court Abbreviation: Mont.