Brammer's Adm'r v. Norfolk & W. Ry. Co

• Decision Date: 13 June 1907
• Citation: 107 Va. 206,57 S.E. 593
• Court: Virginia Supreme Court
• Parties: BRAMMER'S ADM'R v. NORFOLK & W. RY. CO.

57 S.E. 593

107 Va. 206

BRAMMER'S ADM'R

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

June 13, 1907.

1. Election of Remedies—Abatement and Revival—Death by Wrongful Act—Statutes.

Code 1887, §§ 2902, 2903 [Va. Code 1904, p. 1526, 1527], create a right of action for death by wrongful act, and section 2906, as amended by act of January 29, 1894 (Laws 1893-94, p. 83, c. 88), declares that such action shall not abate by the death of the defendant or the dissolution of a corporate defendant, and that, where an action is brought by the party injured for damage caused by negligence and the plaintiff dies pending the action, it shall not abate, but the action may be revived in the name of his personal representative. Held that, where a person injured by the alleged negligence of a railroad company brought suit for such injuries and died during the pendency thereof, his administrator was either entitled to revive the same and prosecute it to termination, or dismiss it and institute an action for wrongful death under section 2902.

2. Judgment—Nature of Action—Res Judicata.

Code 1887, § 2902 [Va. Code 1904, p. 1526], creates an action for wrongful death, and section 2903 declares that such action shall be brought in the name of the party's personal representative within twelve months after the death, and provides for the apportionment of any award by the jury among the decedent's husband, wife, parent, and child. Section 2906, as amended by Act Jan. 29, 1894 (Laws 1893-94, p. 83, c. 88), provides for the revival of an action for injuries on the death pendente lite of the person injured. Held, that where a party injured brought suit therefor and died prior to its determination from his injuries, whereupon his administrator revived the action and prosecuted it unsuccessfully to judgment, the judgment was conclusive against the administrator's right to maintain a subsequent action for wrongful death.

Error to Circuit Court, Henry County.

Action by J. D. Short, as administrator of M. L. Brammer, deceased, against the Norfolk & Western Railway Company. From a judgment for defendant, plaintiff brings error. Affirmed.

Hunt & Staples, for plaintiff in error.

Robertson & Wingfield and Henry G. Mullins, for defendant in error.

CARDWELL, J. M. L. Brammer, while driving in a wagon across the Norfolk & Western Railway tracks at a crossing in Henry county, Va., was struck by a locomotive, and, in addition to the killing of the team and the destruction of the wagon, he received personal injuries. He thereupon sued the railway company for injury to his person and property, but died pending that action. After his death the action was revived, under section 2906 of the Code of 1887 [Va. Code 1904, p. 1530] as amended by the act of January 29, 1894 (Laws 1893-94, p. 83, c. 88), in the name of J. D. Short, his administrator, and proceeded in in the circuit court and afterwards in this court to a final adjudication adverse to the plaintiff.

Before the final adjudication in that case the present action was brought by the same plaintiff for the personal injuries to Brammer, resulting, as alleged, in his death, and at the hearing thereof, which was after the final adjudication in the first case, the defendant company tendered certain pleas of res adjudicata, which were sustained by the court below; and to that judgment this writ of error was awarded.

It is contended for plaintiff in error that the circuit court erroneously sustained the pleas of res adjudicata by resort to the doctrine of estoppel, and that, under sections

2902 and 2903 of the Code of 1887, the present action is maintainable on behalf of the widow and children of Brammer, independent of the right of action subsisting in Brammer at his death.

Section 2902 provides for the right of action in case of death in the following language: "Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, or of any ship or vessel, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, " etc. And section

2903 is as follows: "Every such action shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death. The jury in any such action may award such damages as to it may seem fair and just, not exceeding ten thousand dollars, and may direct in what proportion they shall be distributed to the wife, husband, parent and child of the deceased. * * * " Section 2906, as amended by the act of January 29, 1894, supra, is as follows: "The right of action under sections 2902 and 2903 shall not determine, nor the action when brought abate, by the death of the defendant, or the dissolution of the corporation when a corporation is the defendant; and where an action is brought by a party injured for damage caused by the wrongful act neglect or default of any person or corporation and the party injured dies pending the action, the action shall not abate by reason of his death, but, his death being suggested, it may be revived in the name of his personal representative." It was under this last-named section that the action brought by Brammer in his lifetime was revived after his death in the name of his administrator, plaintiff in error here, and was finally adjudicated in this court. Brammer's Adm'r v. N. & W. Ry. Co., 104 Va. 50, 51 S. E. 211.

The argument of the learned counsel for plaintiff in error in support of the contention that this action is maintainable, notwithstanding it has been finally adjudicated adversely to the same plaintiff in another action against the same defendant to recover damages for the same cause, proceeds upon the theory that the purpose and effect of our statute, the prototype of which is "Lord Campbell's Act, " is to create a new cause of action—in fact, two new causes of action— in all cases in which the injured party would have had a cause of action had not death ensued, the one for the benefit of the decedent's estate and the other for the benefit of the relatives nominated in the statute, and decided cases cited from other jurisdictions, seemingly at least, afford support for this contention.

Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269, is also relied on, but it is manifest that what was said in the opinion in that case is misconstrued by counsel. The opinion does say that the administrator bringing action under sections 2902, 2903, "sues wholly by virtue of the statutes and in respect of a different right. Where the right of action which the deceased person had in his lifetime survives, the personal representative sues as the regular owner of the personal estate * * * and the recovery is for the benefit of * * * the estate of the decedent. * * * The right of action of the personal representative is the same that was possessed by the deceased in his lifetime. * * * But very different is the right of action given by the act in question. The act requires the suit to be brought by and in the name of the personal representative, but he by no means sues in his general right of personal representative. He sues only by virtue of the statute in respect of a different right" And further: "His suit proceeds on different principles. He sues not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased who are designated in the statute." But clearly the learned judge who delivered the opinion in the language used was referring to the right of action where suit thereon could have been brought by the injured party in his lifetime, and which, upon his death, could be revived in the name of the personal representative, Independently of sections 2902, 2903, on the one hand, and the rightof action revived under section 2906, on the other. The only point decided in that case of interest here is that an action to...