Stanley v. Vogel
| Decision Date | 18 May 1880 |
| Citation | 9 Mo.App. 98 |
| Parties | CATHERINE E. STANLEY, Appellant, v. JOHN C. VOGEL, EXECUTOR, Respondent. |
| Court | Missouri Court of Appeals |
Actions for personal injuries do not survive the death of the party through whose negligence the injury is caused.
APPEAL from the St. Louis Circuit Court, LINDLEY, J.
Affirmed.
C. P & J. D. JOHNSON and HERMANN & ROBERTSON, for the appellant: This action arises out of contract, and survives.-- Doede v. Wiswall, 5 How. Pr. 132 Yevtore v. Wiswall, 16 How. Pr. 8; Posse v. Shipton, 8 Ad. & E. 963; Brotherton v. Wood, 3 Brod. & B. 54. The right of action for the recovery of damages for the loss of earnings, and for money expended by reason of the injury sustained, survives under the statute.--Wag. Stats. 87, sects. 29, 30; James v. Christy, 18 Mo. 164; Jewell v. Weaver, 10 Mo. 234; Higgins v. Breen, 9 Mo. 493.
W. H. H. RUSSELL, for the respondent: Actions of tort die with the person committing the same.-- Nettleton v. Dunhort, 5 Cush. 543, 544; Faith v. Carpenter, 33 Ga. 79; Wheatley v. Lane, 7 Saund. (6th ed.) 216; Hamble v. Trott, Cowp. 371; The People v. Gibbs, 7 Wend. 29; Hirch v. Melgger, 6 Serg. & R. 272.
The defendant's testator was conducting a hotel in St. La. The petition alleges that the plaintiff was a guest at the hotel, and that the testator, disregarding his agreement to furnish her with suitable accommodations, had an elevator shaft in the hotel so carelessly arranged that the plaintiff, having occasion to retire to the water-closet, fell through the unguarded doorway and into the shaft of the elevator, whereby she was greatly injured. The testator having died, this action was brought, and there was a demurrer on the ground that the cause of action did not survive. There was judgment for the defendant on the demurrer.
It is clear that at common law this action does not survive against the executors. They are assignees, not of the testator's person, but of his estate. The essence of this action is the wrong as clearly as if it were trespass for assault. If the plaintiff had been a guest, and the defendant's testator had assaulted her, could the plaintiff have made the cause of action survive by declaring as a guest? If not, how can it survive through the present insertion of a similar statement, wholly unnecessary as it is to the cause of action? In either case the action is based on the wrong, the directness or indirectness going only to the different forms of tort. That the plaintiff had a right to be where she was may have been a material factor in her case. But it was not as her host that the defendant was liable, but as the owner, or person in charge of a building.
It was not at common law, nor is it under our statutes, a decisive test of the survival of an action that it arose out of contract. Actions for breach of promise of marriage never survived, unless, at least, special damage was proved, or there was immediate injury to property. It was said by Lord Ellenborough, in Chamberlain v. Williamson, 2 Mau. & Sel. 408: In Wilson v. Tucker, 3 Stark. N. P. 154, a nisi prius case, the question was not mooted. The true test as to survival against an executor was whether the cause of action had its basis in a property right, and necessarily involved the breach of a contract obligation. Hambly v. Trott, Cowp. 376; 1 Saund. 216, note; Ld. Raym. 973; Martin v. Bradley, 1 Caines 124.
It is only on the ground that the gist of the action is injury to a property right, and that the action sounds in contract that Lord Mansfield's dictum as to the survival of an action against the executor of a common carrier can be maintained. Hambly v. Trott, supra. So Sir James Mansfield evidently thought. Powell v. Layton, 2 Bos. & Pul. N. R. 370. The case of James v Christy, ...
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