Belding v. Black Hills & Ft. P.R. Co.

• Decision Date: 08 December 1892
• Citation: 53 N.W. 750,3 S.D. 369
• Parties: BELDING v. BLACK HILLS & FT. P. R. CO.
• Court: South Dakota Supreme Court

53 N.W. 750

3 S.D. 369

BELDING v. BLACK HILLS & FT. P. R. CO.

Supreme Court of South Dakota

December 8, 1892

Syllabus by the Court.

1. Section 5498, Comp. Laws, which provides that, "if the life of any person *** shall be lost, *** the personal representative may institute suit, and recover damages in the same manner that the person might have done for any injury when death did not ensue," is a survival statute, and the only damages recoverable under the section are such as the estate has sustained, but not for the loss of the life of the deceased.

2. When the death of such person is alleged in the complaint to have been instantaneous with the accident causing his death, no right of action could have accrued to the deceased, because the life closed with the accident, and none could therefore accrue to his personal representative. The complaint therefore, is fatally defective under that section.

3. Section 5499, Comp. Laws, which provides that "if the life of any person *** is lost or destroyed, *** then the widow, heirs, or personal representative of the deceased shall have the right to sue *** and recover damages for the loss or destruction of the life aforesaid," creates a new cause of action in favor of the widow, heirs, or personal representative that can only arise after the death of the party.

4. The intention of the legislature in the passage of this section manifestly was to give to the widow the prior and exclusive right to institute the action and recover the damages under this section in case the deceased left a widow. If none, then that the heirs should have the prior and exclusive right to institute the action and recover the damages.

5. It appearing from the complaint in this action that the deceased left a widow and children surviving him, no action can be maintained under the latter section by the personal representative, as the right to institute such action belongs first to the widow.

6. The damages claimed in this action are those alleged to have been sustained by the widow and children, and not the estate. The personal representative is not authorized to institute an action in behalf of or for the benefit of the widow and children under that statute. The complaint, therefore, is fatally defective under both sections.

Appeal from circuit court, Lawrence county; C. M. THOMAS, Judge.

Action by John P. Belding, administrator of the estate of Merritt J Belding, deceased, against the Black Hills & Ft. Pierre Railroad Company, for causing the death of decedent. Verdict for plaintiff. Motion in arrest of judgment was denied, and judgment rendered on the verdict. Defendant appeals. Reversed.

Moody & Washabaugh and Martin & Mason, for appellant. McLaughlin & McLaughlin, for respondent.

CORSON J.

This was an action brought by plaintiff, as the administrator of the estate of Merritt J. Belding, deceased, to recover damages alleged to have been caused by the negligence of the defendant, resulting in the death of the decedent. The complaint alleges, in substance, that on September 13, 1890 while deceased was a passenger on the cars of the defendant a certain tree standing contiguous to the railroad track of the defendant, by reason of the negligence of the servants and agents of defendant, fell, struck the deceased, and instantly killed him. The damages alleged to have been sustained are stated in the complaint as follows: "(5) That said Merritt J. Belding was at the time of his death a resident of Lawrence county, in said state, a married man, and left a widow, Julia Belding, who was dependent on him for support; and also left two children, Harry J. Belding, aged twelve years, and Pearl Belding, aged eight years, dependent upon him for support, nurture, and education; and these have been injured and damaged by the negligence of said defendant and its servants, causing the death of deceased, as aforesaid, in the sum of thirty thousand dollars; and the plaintiff, as administrator of the estate of said deceased, has been injured and damaged as aforesaid in the sum of thirty thousand dollars. Wherefore said plaintiff, as administrator of the estate of said Merritt J. Belding, deceased, demands judgment against said defendant for the sum of thirty thousand dollars and costs." The defendant, by answer, admits that deceased was instantly killed in the manner alleged, but denies all negligence, damages, etc. A trial was had before a jury, resulting in a verdict for the plaintiff for the sum of $5,000. There were several special findings of the jury, not necessary to be noticed on this appeal. After the verdict was rendered, but before judgment, the defendant moved to arrest the judgment upon the following grounds: "First, no cause of action is alleged in the complaint by the plaintiff against the defendant; second, because, the complaint having alleged and the answer admitted that the death of Merritt J. Belding was instantaneous, no cause of action can be maintained by the plaintiff against the defendant company for damages for causing such death; third, because no legal measure of damages is alleged in the plaintiff's complaint, and no issue is embraced in the pleadings upon which damages could be predicated." This motion was denied by the court, to which ruling defendant duly excepted. Judgment was thereupon rendered upon the verdict, and from this judgment and order the defendant has taken an appeal to this court.

The following errors are assigned: "(1) The court erred in sustaining plaintiff's action and not dismissing it for want of a cause of action stated in plaintiff's complaint. (2) The court erred in overruling defendant's motion to arrest judgment herein. (3) The court erred in rendering and entering judgment in favor of said plaintiff and against said defendant."

The motion to arrest the judgment was, in effect, an objection to the complaint that it did not state facts sufficient to constitute a cause of action in favor of the plaintiff. If the complaint is fatally defective, and cannot be made good by amendment, no judgment could legally be entered upon it and the motion should have been granted. The only question presented on this appeal, therefore, is, did the complaint state facts sufficient to constitute a cause of action in favor of the plaintiff that would entitle him to recover in this action? The learned counsel for appellant contend that as it is alleged in the complaint that the death, resulting from the injury, was instantaneous, the action could not have been maintained by the plaintiff's intestate, and cannot, therefore, be maintained by his personal representative, and that the statute under which this action was brought does not create a new cause of action, but is a survival statute. The learned counsel for the respondent insist that the statute is not a survival statute, but that it gives a new remedy to the personal representative that did not before exist. They further insist that, if this is not correct, there must have been an interval of time in which plaintiff's intestate had a right of action, and that therefore the plaintiff succeeded to that right. It may be regarded as settled that at common law no civil action can be maintained by an executor or administrator to recover damages sustained by a person by reason of injuries resulting in the death of such person. When the person dies, the cause of action does not survive, but dies with him. Insurance Co. v. Brame, 95 U.S. 754; Dennick v. Railway Co., 103 U.S. 11; The Harrisburg, 119 U.S. 199, 7 S.Ct. 140; Grosso v. Railroad Co., (N. J. Sup.) 13 A. 233; Whitford v. Railroad Co., 23 N.Y. 465; Hollenbeck v. Railroad Co., 9 Cush. 480. This being the rule at the common law, the right to institute and maintain this action, if any exists, must be found in the statute itself. There are two sections of our statute that bear upon this question, which read as follows: "Sec. 5498. If the life of any person, not in the employment of a railroad corporation, shall be lost, in this state, by the reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or negligence or carelessness of their employes or agents, the personal representatives of the person whose life is so lost may institute suit and recover damages in the same manner that the person might have done for any injury where death did not ensue. Sec. 5499. If the life of any person or persons is lost or destroyed by the neglect, carelessness, or unskillfulness of another person or persons, company or companies, corporation or corporations, their or his agents, servants, or employes, then the widow, heir, or personal representatives of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover damages for the loss or destruction of the life aforesaid." The act which has, in most of the American states, served as a model for this class of legislation, is known as "Lord Campbell's Act," passed by the British parliament in 1846. That statute, bearing upon this question, is as follows: "That whensoever the death of a person shall be caused by the wrongful act, neglect, or default, of another and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have...