Woodward v. Chicago & Northwestern Railway Co.

23 Wis. 400 | Wis. | 1868

DixoN, O. J.

With respect to the persons to be benefited by the money recovered in an action of this nature, the statute of this state differs materially from that of New York, and from the English statute, 9th and 10th Victoria, chapter 93. The New York statute provides, that “ the amount recovered shall be for the exclusive benefit of the widow and next of kin, and shall be distributed in the proportions provided by law in relation to the distribution of personal property left .by an intestate.” The English statute declares, “that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused.” The statute of this state reads as follows : “ And the amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her; but if no husband or widow survive the deceased, the amount recovered shall be paid over to his or her lineal descendants, and to his or her lineal ancestors in default of such descendants; and in every action tbe jury may give such, damages, not exceeding five thousand dollars, as they shall deem fair and just in reference to the pecuniary injury resulting from such death to the relations of the deceased specified in this section.” By all the statutes, the action must be brought in the name of the personal representative of the deceased —1 that is, the executor or administrator. Now, while it is apparent, under the English and New York statutes, that the right of action vests at once for the benefit of each and all of the persons entitled to receive any part of the money recovered, and may be maintained so long as any one of such persons survives, it is equally apparent by our statute, that it vests only for the benefit of the husband or widow, in case the deceased leaves such surviving relative; and if no such relative survives at the time of the death, the action may be prosecuted for the benefit of the lineal descendants of the deceased; and in default of these, then for the benefit of his or her lineal ancestors. And it hardly seems necessary to add, that if the deceased leaves no relatives of the kind described in the statute, then no action whatever can be maintained. As observed by DueR, J., in Safford v. Drew, 8 Duer, 633, the facts that there are persons entitled by law to claim the indemnity, and that they have sustained a loss justifying their claim, must be proved upon the trial in order to warrant a recovery; and when these facts are not proved, the foundation of the action fails, and the complaint must be dismissed. The language of the statute is so plain, that there seems to be no room for argument as to its meaning.

In this case, the deceased, who was a married woman, left a husband, who survived until some time after this action was commenced. Upon her death, therefore, the right of action, by the statute, vested solely and exclusively for the benefit of her husband. He alone was entitled to the amount to be recovered, and could hold and dispose of the same at pleasure. The lineal decendants and ancestors of the deceased had no interest whatever in tbe action, and tbe damages to be recovered could not be estimated witb reference to tbe pecuniary injury, if any, resulting to tbem, or any of tbem. Tbe damages must bave been given in reference to tbe pecuniary injury and loss of tbe husband alone; and such is tbe obvious interpretation of tbe words in tbe last clause — “witb reference to tbe injury resulting from sucb death to tbe relatives of tbe deceased specified in this section ” — which are to be understood distributively, and not collectively, as counsel seem to suppose.

Tbe question then arises as to tbe effect of tbe death of tbe husband: Did the action abate thereby, or does it survive, so that it may stijl be prosecuted for the benefit of tbe infant child of Mrs. Woodward ? In answering this question we are first to consider tbe nature of tbe action, whether it is one sounding in tort or contract. Upon this point it does not seem to us that there can be two opinions. It is clearly an action of tort. It is an action given to recover damages for an injury caused by tbe wrongful act, neglect, or default of another. It can only be maintained where tbe deceased, if death bad not ensued, would bave been entitled to sue for and recover damages in. respect of tbe same injury. It is founded upon an injury to tbe person of tbe deceased, which could only be redressed in an action of tort. By tbe common law, tbe death was a bar to any recovery against tbe guilty or negligent party, and tbe legislature, by declaring that be shall remain liable to an action, notwithstanding tbe death, may, in some sense, be said to bave declared that the same cause of action shall survive, though based on a somewhat different principle, and witb a right of recovery in some respects beyond that which tbe deceased would bave if she bad lived.

It being, therefore, an action of tort, and tbe sole party in interest having died, tbe next inquiry is, whether it falls within tbe general rule of tbe common law, that sucb an action does not survive tbe death of tbe party in whose favor it existed. It is -very clear to our minds that it is not distinguishable in this particular from other actions of tort, and that the common law rule must govern, unless it has been taken out of the operation of that rule by some express provision of statute. We know of no such provision. The statute declaring what actions shall survive in addition to those which survive by the common law, is section 2 of chapter 135 of the Eevised Statutes; and this is clearly not one of them. They are actions for the recovery of personal property, or the unlawful conversion thereof; actions for assault and battery, or for false imprisonment, or for goods taken and carried away; and actions for damages done to real or personal estate. The provisions of statutes allowing actions of tort to survive are strictly construed, so as not to extend the exceptions beyond the clear intent of the legislature. 14 Cray, 183; 19 Pick. 47; 5 Cush. 543; 9 id. 108.

The position that the action does not abate because the nominal plaintiff, the administrator, still lives and is ready and willing to prosecute it, seems scarcely worthy of serious thought. The administrator is a mere trustee, so made by the statute, with power to sue for the benefit of his oestwi que trust, or the person beneficially interested. He has no right except in virtue of the right of the real party in interest, and if the right of that party is lapsed or lost, so that no recovery can be had upon it, it follows that the action can be no longer maintained. As already observed, whether there is a person in being entitled, under the statute, to the money recovered, and whom the administrator represents, is one of the facts in issue, which must be proved before any recovery can be had. It appears that the person so entitled died, and that the right of action expired with him; and for that reason, if for no other, the judgment of nonsuit must be affirmed.

By the Gourt. — Judgment affirmed.