Bates v. Sylvester

• Decision Date: 01 July 1907
• Citation: 205 Mo. 493,104 S.W. 73
• Parties: BATES v. SYLVESTER.
• Court: Missouri Supreme Court

104 S.W. 73

205 Mo. 493.

BATES v. SYLVESTER.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

ABATEMENT AND REVIVAL—DEATH OF PARTY— ACTION FOR PERSONAL INJURIES.

Under Rev. St. 1899, § 96 [Ann. St. 1906, p. 369], providing that actions for all wrongs done to property, rights, or interests of another, for which an action might be maintained against the wrongdoer, may after his death be brought against his executor or administrator, the same as actions founded upon contract; section 97, providing that the preceding section shall not extend 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; sections 2864, 2865, 2866 [pages 1637, 1644, 1646], providing that actions for personal wrongs shall not die with the party whose death was occasioned by the wrongful act, but shall survive to certain parties, but making no provision for the contingency of the death of the person who wrongfully caused the death; and the rule of the common law that the wrongdoer and the wrong are buried together—an action by a widow for the death of her husband, caused by the wrongful act of defendant's intestate, did not survive the death of the wrongdoer, and hence could not be brought against defendant as his administrator.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Henrietta A. Bates against William W. Sylvester, administrator of James J. Sylvester, deceased. From an order abating the action as to defendant, plaintiff appeals. Affirmed.

Lyon & Swarts and Thomas J. Hoolan, for appellant. Block & Sullivan, for respondent.

GANTT, J.

The plaintiff brought suit under section 2865, Rev. St. 1899, for the alleged negligent killing of her husband, Depello Bates, by an employé 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.

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 of the Revised Statutes of 1899 [Ann. St. 1906, pp. 369, 370], 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 interests of another, for which an action may be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer, 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 4 Edw. 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 prohibited in that statute only by construction. The words of our statute are, `For wrong 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. Rev. St. 1835, tit. `Administration,' art. 2, p. 49, §§ 24, 25." Sections 96 and 97 have been construed by this court. Thus, in Vawter v. Railway Co., 84 Mo., loc. cit. 685, 686, 54 Am. Rep. 105, 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, Rev. St. 1879, bring an action for all wrongs done to property, rights, or interest of the deceased against the wrongdoer. Section 96 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 action, 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 et al., 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 ferryboat on which the son was a passenger. The son was living with his father, and was 15 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 services 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, of the son's disability 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. Railway Co., 84 Mo. 686, 54 Am. Rep. 105. 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., loc. cit. 331; Barker v. Railway Co., 91 Mo., loc. cit. 91, 14 S. W. 280; Brink v. Ry. Co., 160 Mo., loc. cit. 92, 60 S. W. 1058, 53 L. R. A. 811, 83 Am. St. Rep. 459; Stoeckman v. Railway Co., 15 Mo. App., loc cit. 507. 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 could not have been maintained.

Sections 96 and 97 are literal transcriptions of the New York statute on this subject. In Hegerich v. Keddie, 99 N. Y., loc. cit. 264, 1 N. E. 790, 52 Am. Rep. 25, the Court of Appeals of that state, construing the two sections of the New York statute, said: "Reference to the law as it stood prior to the revision (and the application of the maxim `noscitur a sociis') would seem to require such an...