Byrd v. Byrd

• Decision Date: 27 February 1940
• Docket Number: No. CC621.,CC621.
• Citation: 7 S.E.2d 507
• Court: West Virginia Supreme Court
• Parties: BYRD, Sheriff. v. BYRD, et al.

7 S.E.2d 507

BYRD, Sheriff.

v.BYRD, et al.

No. CC621.

Supreme Court of Appeals of West Virginia.

Feb. 27, 1940.

Syllabus by the Court.

1. The common law rule that an action for personal injuries, not resulting in death, does not survive the death of the wrongdoer, prevails in this state, and is not changed by Code 55-7-5 (Lord Campbell's Act) as amended by Chap. 20, Acts of Legislature 1931. Said amendment relates only to actions for wrongful death.

2. Where a person suffers personal injuries, not resulting in death, at the hands of a public official who has given bond for the faithful performance of the duties of his office, the cause of action thereon dies with the death of the wrongdoer, and an action cannot thereafter be maintained on the contractual elements of the bond, either against the personal representative of the principal in said bond, or his surety thereon.

Certified from Circuit Court, Wyoming County.

Action by Lon F. Byrd, Sheriff, at the relation of Elda Roberts, against Lon F. Byrd, administrator of the personal estate of Enoch White, deceased, and the Fidelity & Deposit Company of Maryland to recover for personal injuries. The circuit court sustained a demurrer to the declaration, and on its own motion certified its ruling to the Supreme Court of Appeals.

Ruling affirmed.

E. L. Phillips, of Matoaka, and Worrell & Worrell, of Mullens, for plaintiff.

Hartley Sanders, of Princeton, for defendants.

FOX, Judge.

The circuit court of Wyoming County sustained a demurrer to the declaration in this action, and on its own motion certifies its ruling to this court.

The declaration filed by Lon F. Byrd, sheriff of Wyoming County, who sues at the relation of Elda Roberts, alleges that Enoch White, who was deceased at the time of the institution of the action, went upon the enclosed lands and premises of Roberts, without authority of law, armed with a pistol and revolver, and while thereon unlawfully shot the plaintiff, causing him great bodily injury, pain, and anguish. Lon F. Byrd, administrator of the personal estate of Enoch White, deceased, and the Fidelity and Deposit Company of Maryland are named as defendants therein. White at the time of the alleged injury to the plaintiff was a deputy sheriff, and, together with the Deposit Company, had executed a bond to Lon F. Byrd, sheriff, conditioned upon the faithful performance of the duties of his position.

The demurrer filed by the defendants is based upon two grounds: (1) The declaration shows on its face that Enoch White was dead at the date of the institution of the action; that plaintiff's cause of action did not survive the death of White; and that inasmuch as the cause of action could not be asserted against the personal representative of White, the Fidelity and Deposit Company could not be held under the bond in which he was principal; (2) the declaration failed to allege any breach of duty on the part of Enoch White toward the plaintiff.

The declaration is in the usual form, and we think the breach of duty and the character of the wrong complained of, are sufficiently alleged. The right of the plaintiff to institute suit after the death of Enoch White is the real question involved herein.

It is clear that under the common law all personal actions died with the person, but, through statutes and otherwise, many exceptions to the rule have developed, one being that actions for injuries to the personal estate of a decedent, or by a decedent to the personal estate of another, survive death. The rule, however, remains in full force in this state with respect to personal injuries, false imprisonment, slander and other actions affecting the person, with the single exception of what is known as Lord Campbell's Act, which, with slight variations, has existed in this state since its formation, Code 55-7-5, and under which an action against a wrongdoer whose acthas caused the death of a person survives to the personal representative of the decedent. The cases of Curry v. Town of Mannington, 23 W.Va. 14, and Flint v. Gilpin, 29 W.Va. 740, 3 S.E. 33, clearly define the common law rule with respect to purely personal actions.

However, it is contended that the amendment to this, act, Chap. 20, Acts of the Legislature 1931, Michie Code 1937, 55-7-5, and which added the following sentence to the existing statute: "Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrong-doer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrong-doer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before or after the death of the injured party.", justifies the present action.

We are unable to give this construction to the...