Cooper v. Shore Elec. Co.

• Decision Date: 20 November 1899
• Parties: COOPER v. SHORE ELECTRIC CO. et al.
• Court: New Jersey Supreme Court

44 A. 633

63 N.J.L. 558

COOPER

v. SHORE ELECTRIC CO. et al.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1899.

Error to supreme court.

Action by Jehu P. Cooper, administrator of Lessie Madison, deceased, against the Shore Electric Company and others. From a judgment of nonsuit, plaintiff brings error. Reversed.

This was an action brought by the plaintiff, as administrator of the deceased, for causing the death of Lessie Madison by the negligent and careless conduct and management by the defendants and their employes of the defendants' telephone and electric light wires, whereby the deceased received an electric shock from the effects of which she died. The action was brought in virtue of an act entitled "An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default," approved March 3, 1848 (Revision, p. 294). The suit was for the benefit of the father of the deceased, Peter Hunley, who was her next of kin. Pending the suit, the father died intestate, leaving the mother, brothers, and sisters of the decedent surviving. At the close of the testimony on the part of the plaintiff, counsel of the defendants moved for a nonsuit, which motion was granted on the ground that the cause of action vested in the father of the plaintiff's intestate or next of kin on her death, and did not survive his death, the administrator being merely a nominal party. The bill of exceptions brings up this ruling of the trial court.

Applegate & Hope, for plaintiff in error.

Edmund Wilson and E. A. & W. T. Day, for defendants in error.

DEPUE, J. (after stating the facts). The sole question presented on the record is, did the action abate on the death of the next of kin for whose benefit suit was brought? The administrator of the deceased is the party on the record in whose name as party the suit is prosecuted. The suit therefore did not, by the practice and procedure at common law, abate for the want of parties. The death of the administrator would not abate the suit. The suit would be continued in the name of the new administrator. Mundt v. Glokner, 24 App. Div. 110, 48 N. Y. Supp. 940. The substantial question in the case is whether the cause of action, once vested, was lost by the death of the beneficiary for whose benefit the suit was prosecuted. The question, therefore, is not one of procedure, but of right. Martin's Adm'r v. Railroad Co., 151 U. S. 674. 14 Sup. Ct. 533, 38 L. Ed. 311. By the common law, "actio personalis moritur cum persona,"—the death of the sole plaintiff or the sole defendant before final judgment abated a personal action. The principle on which this rule rested was that the cause of action did not survive to the personal representatives of a deceased person. In discussing the effect produced upon the liability for wrong by the death of either the person wronged or the wrongdoer, Mr. Pollock declares this to be the least rational part of our law; that the rule, "Actio personalis moritur cum persona," seems to be without plausible ground, and is a rule which has been made at all tolerable in a civilized country only by a series of exceptions. Pol. Torts, 52-54. The first modification of this common-law rule was made by the statute of 4 Edw. III. c. 7, which enacted that executors should have an action against trespassers for a trespass done to their testators as of the goods and chattels of the testator carried away in life, and recover damages against the trespassers in the same manner as they whose executors they be should have had if they were in life. This right was extended to executors of executors by 25 Edw. III. c. 5. By construction the statute was extended to administrators, and to actions on the case and actions of assumpsit on simple contracts. Pinchon's Case, 9 Coke, 86-89. The statute of Edward III. did not extend to actions for injuries to the person or to the testator's freehold. The latter causes of action were left subject to the common-law rule. In this state the common-law doctrine for the remedy of which the statutes of Edward III. were passed was further modi-fled by the act of March 17, 1855. The efficient words in this statute are, "trespass to the person or property, real or personal." For such an injury the statute provides that the action shall survive to and against personal representatives. The first section, which confers a right of action upon executors and administrators to maintain an action for any trespass done to the person or property, real or personal, of their testator or intestate, against the trespasser, limits the damage to such damages "as the testator or intestate might have had or maintained if he or she was living." The second section, which imposes a liability upon executors or administrators for any trespass "to the person or property, real or personal, done by the testator or intestate in his lifetime," limits the right of action to the same action against executors or administrators as the person sustaining the injury might have maintained against the testator or intestate if he were living. Pub. Laws 1855, p. 340. In virtue of this act it was held that an action to recover damages sustained by water being flowed back upon the plaintiff's land from the mill dam of the defendant did not abate by death of the defendant after issue joined, but might be continued against his executor. Ten Eyck v. Runk, 31 N. J. Law, 428. In Tichenor v. Hayes it was held that an action for negligence and deceit would lie against the personal representatives of the deceased wrongdoer in virtue of the statute. 41 N. J. Law, 193. In the first of these cases it was said by Chief Justice Beasley that this act is highly remedial in its character: "Its intent was to relieve against the harsh injustice of the old rule, 'Actio personalis moritur cum persona.' * * * The statute, therefore, is to be liberally construed, so as to advance the remedy for this imperfection." The chief justice, in his opinion, declared that the word "trespass," in its comprehensive signification, embraced every infraction of a legal right. "In this sense it comprehended not only forcible wrongs, where the damages were direct and immediate, but also acts the consequences of which made them tortious." He quotes with approbation an extract from Tomlin's Law Dictionary, where, in defining the word, this language was used: "So, nonperformance of promises and undertakings is a trespass, upon which an action of trespass on the case is grounded; and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in the largest sense, for which an action will lie. * * * In my opinion, the word 'trespass,' as used in the section under consideration, must be received as equivalent in meaning to the word 'tort,' so that the effect of the provision is to give a right of suit against the personal representatives of a deceased wrongdoer for any injurious act of a suable nature, without reference to the form in which the remedy must be sought." This act did not give a remedy for injuries resulting from the death of a person. This imperfection in the law was remedied by a later statute, viz. the act under which this suit was brought. The status of the maxim, "Actio personalis moritur cum persona," in our judicial system, will be exemplified by comparing Hayden v. Vreeland, 37 N. J. Law, 372, with Noice v. Brown, 39 N. J. Law, 569. The opinion in each of these cases was delivered by Mr. Justice Van Syckel. In the first case it was held that an action for the breach of a promise of marriage could not, either at common law or within the act of 1855, be maintained by or against the personal representatives of either party to the contract, and was abated by the death of the defendant after issue joined. In the other case it was held that an action by a father for the seduction of his daughter in his lifetime might be maintained by his personal representatives. The decision in the first case was placed upon "the exceptional nature of the contract, the Injury being purely personal." The learned judge, in his opinion, says: "This action does not survive at common law, not because it is not an action ex contractu, as distinguished from tort, but for the reason that the injury is purely personal, in which the representative of the estate has no interest. * * * Its peculiarity lies in the fact that the injury to be compensated is exceptionally personal." In the second case the action was sustained on the ground that the wrong was of a twofold nature,—wounding the father in his feelings, and affecting his property rights,—resting as it does on the technical ground that by the injury he lost service of some pecuniary value. The distinction between the two cases consists in that in the former the injury was purely personal, and in the latter the cause of action related to property rights, which gave to the suit the quality of survivorship, and took it out of the...