Boor v. Lowrey

• Decision Date: 04 November 1885
• Docket Number: 11,809
• Citation: 3 N.E. 151,103 Ind. 468
• Parties: Boor, Administrator, et al. v. Lowrey
• Court: Indiana Supreme Court

3 N.E. 151

103 Ind. 468

Boor, Administrator, et al. v. Lowrey

No. 11,809

Supreme Court of Indiana

November 4, 1885

From the Fayette Circuit Court.

Judgment is reversed with costs.

J. H Mellett, E. H. Bundy, J. Brown, W. A. Brown and R. Conner for appellants.

T. B Redding, D. W. Chambers and J. S. Hedges, for appellee.

Mitchell, C. J. Elliott, J. Zollars, J., concurs in the opinion of Elliott, J.

OPINION

Mitchell, C. J.

Isaac Lowrey brought this action against Luther W. and Frank C. Hess, to recover damages alleged to have resulted from the negligent and unskilful manner in which they set and treated his shoulder, which had been dislocated and fractured.

It is charged in the complaint, that the defendants were partners, engaged in the practice of medicine and surgery, and that the plaintiff, having sustained a fracture and dislocation of his shoulder, employed them, and they undertook, for a certain reward, to set, reduce and treat it, and that they executed their undertaking so negligently and unskilfully as that his arm and shoulder became and remain stiff, immovable and fixed, in an unnatural position; that in consequence of their negligence and unskilful treatment, he suffered and still suffers great pain, distress and impairment of health, and that he is permanently disabled from pursuing his usual avocation. Incidentally, it is recited that in attempting to better and cure his arm and shoulder, he has expended $ 300. Damages are laid at $ 10,000.

While the cause was pending Luther W. Hess died, and his death was suggested on the record. Thereupon, Walter A. Boor, administrator of his estate, was substituted as a defendant. Over the several objections of both defendants, the action was prosecuted to final judgment, resulting in a recovery against the estate of the one, and against the other personally for $ 6,000.

First in the order of presentation and in importance is the question, whether, after the death of Luther W. Hess, the action survived against his personal representative?

It is plainly enacted in the statute, section 282, that "A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person," etc.

The rule actio personalis moritur cum persona, is thus transformed from an ancient maxim of the common law into an express statutory declaration, except only in the cases provided for by its terms. It is said, however, that where a duty is founded upon contract, even though the breach of it may be in tort, an action ex contractu may, at the election of the person injured, be maintained, and that where the action is thus brought, it survives notwithstanding the statute. In support of this contention, Staley v. Jameson, 46 Ind. 159 (15 Am. Rep. 285), and Burns v. Barenfield, 84 Ind. 43, are relied on. These were cases against surgeons for malpractice, and both turned upon the statute which requires actions for injuries to the person to be commenced within two years. In each it was held that the action was in form ex contractu, and that the statute limiting the time for the commencement of actions for injury to the person did not apply.

What the particular damages were which were claimed as the subject of the actions, respectively, does not clearly appear from the statement of the complaint in either case. It must be assumed, however, that the actions were for the recovery of special damages, which had relation to property. They were not, therefore, actions to recover for injuries to the person. If they were, the conclusions reached can not be maintained.

This assumption would seem to be justified by an examination of the authorities upon which the decisions are made to rest. Those which support the conclusion reached are cases involving injury to personal property. Dale v. Hall, 1 Wilson 281; Burnett v. Lynch, 5 B. & C. 589.

It may be that actions ex contractu are maintainable for the recovery of special damages resulting from a breach of duty founded on contract, even though injury to the person results. The action thus maintainable, however, is not, and can not be predicated upon the personal injury, nor to recover damages resulting from injuries to the person. The action must involve injury to the estate, and not to the person. Where the primary cause of action is an injury to the person, and the damages sought to be recovered relate primarily to such personal injury, the statute which provides that actions to recover damages for injuries to the person die with the person of either party, can not be abrogated by the mere form in which the action is brought.

The case of Bradshaw v. Lancashire, etc., R. W. Co., L. R. 10 C. P. 189, affords an example of the instances in which actions sounding in tort may survive. In that case the declaration stated that the testator, a boot and shoe manufacturer, had become a passenger on the defendant's railway, to be carried on a certain journey for a reward, and that they promised to take due care whilst carrying him as such passenger. Breach, that the defendants did not take care in carrying him, whereby he was injured, and incurred expense in medical attendance, and was prevented from attending to his business, and from personally conducting the same, and that great loss and damage was thereby occasioned to the personal estate of the testator. It was contended that because of the death of the testator the executrix could not maintain the action. But as the ground of the action was to recover damages which accrued to the estate of the testator in his lifetime, such as medical and other expenses, and for injury to business resulting directly from the breach of the contract to carry, it was held the action survived.

Of the same character was the case of Potter v. Metropolitan, etc., R. W. Co., 30 L. T. (N. S.) 765; S. C., 32 L. T. (N. S.) 36. In that case, after quoting from Knight v. Quarles, 2 Brod. & Bing. 102, to the effect that if, through the default of a carrier, one sustains an injury to his person, whereby his means of improving his personal property were destroyed, his executors might sue, Bramwell, B., said: "Now here there has been a breach of contract, which has caused a loss, which has fallen upon the personal estate," and it was held that the action was maintainable to recover for such loss.

Again, when the case came before the Exchequer Chamber, Lord Coleridge, C. J., said: "From a breach of the contract on the part of the defendants a loss or damage accrued to the personal estate of the plaintiff's testator." Accordingly it was held that where there was a promise and a breach of it in the lifetime of the testator, resulting in an injury to his personal property, an action in assumpsit might be maintained to recover for such injury. So, also, it is said in 2 Williams Exrs., pp. 876, 877: "If the executor can show that damage has accrued to the personal estate of the testator by the breach of an express or implied promise, he may well sustain an action, at common law, to recover such damage, although the action is in some sort founded on a tort." See, also, Tichenor v. Hayes, 41 N.J.L. 193 (32 Am. Rep. 186; 9 Cent. L. J. 470).

This much has been said to limit the cases of Staley v. Jameson, supra, and Burns v. Barenfield, supra, to the class of actions to which they were doubtless intended to have application.

It is not necessary that we should determine the particular character of special damage to property which might be recoverable in an action on contract where injury to the person was an incident. It is enough to say this action is brought primarily to recover for injury to the person. That an action, the purpose of which is to recover for an injury to the person, can not be maintained after the death of the person committing the injury, is, we think, supported by all the authorities, and this, too, regardless of the form in which it is brought.

In Stebbins v. Palmer, 1 Pick. 71, it was held that an action for breach of promise of marriage would not survive against the personal representative of the promisor. Wilde, J., said: " The distinction seems to be between causes of action which affect the estate, and those which affect the person only: the former survive for or against the executor, and the latter die with the person."

Following this case, Colt, J., said, in Kelley v. Riley, 106 Mass. 339 (8 Am. Rep. 336), a similar case: "The action could not be continued to summon in the administrator, because, as no special damage is alleged, it does not survive."

In the later case of Chase v. Fitz, 132 Mass. 359 which was an action of the same complexion, in which an attempt was made to charge special damage, it was held that the neglect or refusal to perform an invalid executory contract could not constitute a basis for special damage. After defining, to some extent, what was meant by the phrase "special damage," as used in the class of cases to which this belongs, it was held that the action did not survive against the personal representative. See, also, Smith v. Sherman, 4 Cush. 408; Grubb's v. Sult, 73 Va. 203, 32 Gratt. 203 (34 Am. Rep. 765); Dillard v. Collins, 66 Va. 343, 25 Gratt. 343. In the case of Wade v. Kalbfleisch, 58 N.Y. 282 (17 Am. Rep. 250), which was an action for breach of marriage contract, brought in form ex contractu, the court by Church, C. J., said: "Although, in form, this action resembles an action on contract, in substance it falls within the definition of the exception, as an action on the case for personal injuries. * * * The controlling consideration is, that it does not relate to property interests, but to personal injuries." In that case it was intimated that as the...