139 N.W. 979 | N.D. | 1913
This is an action brought to recover damages for wrongful death under chapter 38, Revised Codes 1905, commonly known as Lord Campbell’s act. The action is entitled “David Willard, Guardian ad Litem for Alva Yernon Willard, an Infant, Plaintiff, vs B. L. Mohn, Administrator of the Estate of Alfred Thorson, Deceased,” and in substance alleges that David Willard, plaintiff herein, as guardian ad litem, is the duly appointed guardian ad litem of and for Alva Yernon Willard, who is an infant of the age of one year. That B. L. Mohn, the nominal defendant, is the duly appointed and acting administrator of the estate of Alfred Thorson. That said Alfred Thorson died on May 13, 1907; that Alva Yernon Willard, the party plaintiff for whose benefit this action is brought, is the only child horn of Erma Willard, the party for whose wrongful death this action is brought. That on May 13, 1907, Alfred Thorson unlawfully, wilfully, and maliciously shot, heat, and killed one Erma Willard, the mother of Alva Vernon Willard, the party plaintiff for whose benefit this action is brought. That said killing was done in Williams county, Xorth Dakota. That at the time
To this complaint a demurrer was interposed upon three grounds. First, that there is a mistake of parties plaintiff; second, that there is. a mistake of parties defendant; and, third, that the complaint did not. state a cause of action. The demurrer was sustained by the trial court, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and that the defect was incurable; and judgment was ordered upon the pleadings for a dismissal of the action without the privilege of amending said complaint.
It will be noticed that the complaint alleges that both Alfred Thorson and Erma Willard died on the 13th day of May, 1901, but is silent as-to which death occurred first.
Chapter 38, being §§ 1686 — 7691, both inclusive, Rev. Codes 1905,. has been set forth in full in the opinion of Satterberg v. Minneapolis, St. P. & S. Ste. M. R. Co. 19 N. D. 38, 121 N. W. 70, and we will not. incorporate it in this opinion, excepting to call attention particularly to § 7690, which reads as follows: “The action shall not abate by the death of either party to the record. If the plaintiff dies pending the-action, the person next in order, entitled to bring the action, shall by order of the court be made plaintiff therein.”
(1) The first question arising upon the record is whether or not the-plaintiff has stated a cause of action in his favor. It is pointed out that the title of the action is “David Willard, Guardian ad litem for Alva Vernon Willard, Plaintiff,” and it is insisted that chapter 38, Rev. Codes 1905, does not authorize an action in favor of the said David Willard, who was the father of the deceased, but that such cause of action, if any exists, is in favor of the infant son of the deceased. This is. undoubtedly true, and would justify the sustaining of the demurrer. See Harshman v. Northern P. R. Co. 14 N. D. 69, 103 N. W. 412. The defendant is. clearly entitled to have the action brought in the name-of the infant, in order that said infant may be estopped by an adverse-decision from bringing another action. The title to this action should be “Alva Vernon Willard, by David Willard, Ilis Guardian Ad Litem.”' However, in this action it appears from the body of the complaint that.
(2) The vital question remaining then is whether or not under said; chapter 38, Rev. Codes 1905, the cause of action survived the death of Alfred Thorson. As stated in the case of Satterherg v. Minneapolis, St. P. & S. Ste. M. R. Co., the several states have, in adopting Lord Campbell’s act, made such material changes in the language that decisions from other states are of little value in the construction of our statute. Several broad principles of law, however, seem to have received the sanction of all the courts. At common law any cause of action in tort died with the death of either party. The original Lord Campbell’s act (9 & 10 Viet. chap. 93) gave to certain enumerated surviving heirs a cause of action against the tort feasor, but made no provision for continuing such cause of action against his personal representatives after his death. The several American states in enacting-this legislation' seem to have adopted a similar course, and under the-holdings of these courts the cause of action given by the said act died with the tort feasor. In reaching this conclusion they have given as. reasons that “statutes in derogation of the common law are to be strictly construed; and one who seeks to maintain an action which was within the prohibition of the common law must be able to point to a statute-which, in plain and explicit terms, authorizes the action to be maintained.” Those various cases are enumerated and explained in the case-of Bates v. Sylvester, 205 Mo. 493, 11 L.R.A.(N.S.) 1157, 120 Am. St. Rep. 761, 104 S. W. 73,12 Ann. Gas. 457. It will be found from an. examination of such authorities that, with one or two exceptions, and those in states having statutes of great explicitness authorizing the action, the cause of action does not survive. The rule is stated in 13 Cyc. 328, as follows: “The better rule seems to be that where a statute gives.
In view of the well-settled rule that actions in derogation of common law must be amply authorized by statute, we are obliged to hold that the language of § 7690 does not clearly authorize the plaintiff’s suit herein. If the legislature desires the cause of action to become a claim against the estate of the deceased tort feasor, they can readily enact legislation so providing.
