Bates v. Sylvester

• Decision Date: 01 July 1907
• Citation: 104 S.W. 73,205 Mo. 493
• Parties: HENRIETTA A. BATES, Appellant, v. WILLIAM W. SYLVESTER, Administrator of JAMES J. SYLVESTER
• Court: Missouri Supreme Court

104 S.W. 73

205 Mo. 493

HENRIETTA A. BATES, Appellant, v. WILLIAM W. SYLVESTER, Administrator of JAMES J. SYLVESTER

Supreme Court of Missouri, Second Division

July 1, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Affirmed.

Lyon & Swarts and Thomas J. Hoolan for appellant.

An action by a widow for the wrongful killing of her husband is not an action for injuries to the person of plaintiff, and does not abate by the death of the defendant. Knight v Lead & Zinc Co., 75 Mo.App. 541; McGowan v. Ore & Steel Co., 109 Mo. 518; Stanley v. Bircher, 78 Mo. 245; James v. Christy, 18 Mo. 162; Cregan v Railroad, 75 N.Y. 792, 83 N.Y. 595; Behen v. Railroad, 186 Mo. 431; secs. 96 and 97, R. S. 1899.

Block & Sullivan for respondent.

(1) No action lies for the death of a human being except as expressly given by statute. Soeckman v. Railroad, 15 Mo.App. 507; McNamara v. Slavens, 76 Mo. 331; Barker v. Railroad, 91 Mo. 91; Brink v. Railroad, 160 Mo. 92. (2) Section 96 of our administration law deals only with property rights. Higgins v. Breen, 9 Mo. 497; Vawter v. Railroad, 84 Mo. 686; James v. Christy, 18 Mo. 162; Stanley v. Vogel, 9 Mo.App. 101; Weiner v. Peacock, 31 Mo.App. 244; Hegerich v. Keddie, 99 N.Y. 264. (3) Our Damage Act creates no new cause of action, but merely provides for the transmission of an existing one. Proctor v. Railroad, 64 Mo. 119; White v. Maxie, Mo. 558; Gray v. McDonald, 104 Mo. 311; Hennessy v. Brewing Co., 145 Mo. 112; Strode v. Railroad, 197 Mo. 626. (4) And as no statute provides for its surviving the death of the wrongdoer, it will not do so. Norton v. Wiswall, 14 How. Pr. (N. Y.) 42; Hegerich v. Keddie, 99 N.Y. 258; Russell v. Sunbury, 37 Ohio St. 372; Hamilton v. Jones, 125 Ind. 176; Davis v. Nichols, 54 Ark. 358; Moe v. Smiley, 125 Pa. St. 136; Johnson v. Farmer, 89 Tex. 610; Green v. Thompson, 26 Minn. 500; Ott v. Kauffman, 68 Md. 56; Loague v. Railroad, 91 Tenn. 458; Railroad v. Bean, 94 Tenn. 388; Sanders v. Railroad, 111 F. 710.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

The plaintiff brought suit under section 2865, Revised Statutes 1899, for the alleged negligent killing of her husband, Depello Bates, by an employee of James J. Sylvester, by negligently driving a horse and carriage belonging to said defendant over her said husband on or about April 11, 1903. After the suit was filed the cause was dismissed as to the defendant Crissie L. Sylvester and the other defendant, James J. Sylvester, died; his death was suggested to the court and the plaintiff having complied with the statutes, sought to revive the action against W. W. Sylvester, the administrator of said James J. Sylvester, deceased. The writ of scire facias was issued against the said administrator who appeared in court, and for his return to the citation to show cause why this action should not be revived against him, represented to the court that this action did not survive the death of the said defendant, James J. Sylvester, and thereupon the court overruled the plaintiff's motion and application to revive the cause and ordered the same to be abated as to the administrator and estate of the said James J. Sylvester. From this order the plaintiff appeals to this court, and the only question presented for our adjudication is whether or not an action based on the Damage Act survives to the widow against the administrator of the deceased defendant.

I. At common law actions in tort do not survive the death of either the wronged or the wrongdoer. This rule of the common law forbidding the survivor of actions, or right of action ex delicto, was first modified in this State in 1835, by the enactment of what is now sections 96 and 97, Revised Statutes 1899, which are as follows:

"Sec. 96. Actions for torts by and against administrators, what may be maintained. -- For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.

"Sec. 97. Last section not to extend to what actions. -- The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator."

In Higgins v. Breen, 9 Mo. 497, it was pointed out by Judge Scott that the Statute of 4th Edward III "only gave actions to executors, and not against them, for as against the person committing the injury, the action dies with him. [Chitty, 59; 1 Saunders 217.] Our statute has changed the English law in this respect, and has given an action both to and against executors and administrators, and by employing much broader language than the statute of Edward, seems to have included by express enactment the injuries which were comprehended in that statute only by construction. The words of our statute are, 'for wrongs done to the property, rights or interest of another,' etc., with the exception of actions for slander, libel, assault and battery, or false imprisonment, and to actions on the case for injuries to the person. [R. S. 1835, Title Administration, art. 2, secs. 24 and 25.]"

Sections 96 and 97 have been construed by this court. Thus in Vawter v. Railroad, 84 Mo. 679, Judge Black, speaking for this court, said: "An administrator appointed in this State receives his power and authority to sue from the laws of this State, and from this State alone, to which he is amenable throughout the entire course of the administration. There is no statute of this State by which he has or can have anything to do with suits of this character or the damages when recovered. He may, by section 96, Revised Statutes 1879, bring an action for all wrongs done to property rights or interests of the deceased against the wrongdoer. Section 97 provides: 'The preceding section shall not extend to actions . . . on the case for injuries . . . to the person of the testator or intestate of any executor or administrator.' For fear that section 96 might be construed to confer upon the administrator a right to sue for injuries to the person of the intestate, the next, as will be seen, declares in express terms that he shall not do so. To sustain this action we must say he may maintain such actions, and that, too, because of a statute of another State. . . . . This we cannot do."

The learned counsel for the plaintiff insist that any action sounding in tort which does not expressly fall within the limitations of section 97 can be revived by or against the representatives of a deceased party to the action, and as section 97 only bars actions on the case for injuries to the person of the plaintiff, the only question before this court in this case is whether or not this is an action for injuries to the person of the plaintiff, and as this is not an action for injury to the person of Mrs Bates, her cause of action survives against the administrator of the alleged wrongdoer, James J. Sylvester. We are unable to concur in this deduction of the counsel for plaintiff, for the reason that at common law the rule was just the other way, that is to say, actions for tort did not survive, and under section 96, actions for tort do not survive unless they are within the terms of section 96. And if by virtue of the general provisions of said section an action might be said to survive, nevertheless if included within the prohibition of section 97 it will not survive. By reference to section 96, it will be noted that the statute refers to "wrong done to property, rights or interests of another," and counsel for plaintiff cite us to James v. Christy, 18 Mo. 162. That was an action by the administrator of James for the negligent killing of his son by the explosion of a steam ferry boat on which the son was a passenger. The son was living with his father and was fifteen years old. The question was whether the action survived to the administrator of the father, and it was held by this court that the father had a property-right in the service of his son during his minority and whilst he was under his guardianship, and if by the misconduct of another he was deprived of those services, or the son's ability of performing them, the law awarded him a compensation in damages. And it was pointed out by Judge Scott that the damages in such case must be limited to the actual value of those services and that all other damages die with the father. In other words, the language of section 96, to-wit: "Property, rights or interest" mean and should be read "property-rights or interest," and this was the construction placed upon it by this court in Vawter v. Railroad, 84 Mo. 679. At common law the death of a human being gave rise to no civil action in behalf of any person under any circumstances as has often been decided by the appellate courts of this State. [McNamara v. Slavens, 76 Mo. 329; Barker v. Railroad, 91 Mo. 86, 14 S.W. 280; Brink v. Railroad, 160 Mo. 87, 60 S.W. 1058; Stoeckman v. Railroad, 15 Mo.App. 503.]

James v. Christy, supra, was decided in 1853, two years before the enactment of any statute in this State providing for recoveries in cases of injury resulting in death, and it is clear that if the father in that case had brought an action for the death of the infant son he could not have recovered because section 96, then in force, dealt only with the survivor of existing actions and not with the creation of new ones, and by the common law such an action...