City of Wheeling ex rel. Carter v. American Cas. Co.

Decision Date15 June 1948
Docket NumberCC738.
Citation48 S.E.2d 404,131 W.Va. 584
PartiesCITY OF WHEELING ex rel. CARTER et al. v. AMERICAN CASUALTY Co. et al.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. By virtue of the statute, Section 8, Article 7, Chapter 2 Acts of the Legislature of 1945, Regular Session, an action for damages for personal injuries, instituted by the injured person who, while the action is pending, dies from a cause other than the injury, may be revived after his death by his personal representative and prosecuted to final judgment against the surviving wrongdoer and the surety upon his official bond, the breach of the condition of which results from the acts of the wrongdoer in causing the injury.

2. The provisions of Section 8, Article 7, Chapter 2, Acts of the Legislature of 1945, Regular Session, preserve the right of action of an injured person, who has instituted an action for damages for personal injuries against the wrongdoer and dies from a cause other than the injury while the action is pending, to his personal representative to the extent that he may revive and prosecute it to final judgment and, in that respect, such provisions modify the common-law rule that an action for personal injuries ends with the death of the person whether he receives or commits the injury.

3. The title to an act of the Legislature which amends and re-enacts a particular section, article and chapter of the Code by specific reference to them, and which relates to an object as to which, and as to the original section of the Code, the provisions of the act are not foreign, but are congruous and germane and such as might have been incorporated in the section when enacted, and which title is broad enough to give a fair and reasonable indication of the purposes, but does not disclose the details, of the act, satisfies the requirements of Section 30, Article VI of the Constitution of this State and is valid.

FOX J., dissenting.

Carl G Bachmann and Gilbert S. Bachmann, both of Wheeling, for plaintiffs.

Handlan, Garden, Matthews & Hess, of Wheeling, for defendants.

HAYMOND Judge.

This action of covenant was instituted in November, 1946, by the plaintiff, The City of Wheeling at the relation of John T. Carter, to recover damages from the defendants, American Casualty Company of Reading, Pennsylvania, the surety, and Louis Bopp, the principal, upon his official bond as a city police officer for an alleged attack made by Bopp, while armed with a billy, upon Carter on May 25, 1946, in which Carter sustained severe personal injuries.

While the case was pending, on December 30, 1946, Carter died from causes other than the injuries inflicted upon him by Bopp and, by order entered February 19, 1947, the action was revived for the use and benefit of Carter's executor and executrix, who filed an amended declaration on March 6, 1947. The defendants demurred to that declaration and filed three special pleas, to two of which pleas, designated No. 1 and No. 2, the plaintiff entered its demurrer.

The circuit court sustained the demurrer to the amended declaration and the demurrers to the two special pleas and, on its own motion, certified its rulings to this Court.

The controlling questions which arise upon the certificate are: (1) Whether revival of a pending action for personal injuries, after the death of the injured person from other causes, may be had, by virtue of Section 8, Article 7, Chapter 2, Acts of the Legislature of 1945, Regular Session; and (2), if such revival may be had whether the title to the act satisfies the requirements of Section 30, Article VI of the Constitution of this State, which provides that no act of the Legislature shall embrace more than one object and that it shall be expressed in the title.

In the solution of these questions it is appropriate to consider the historical background in this State of actions based on personal injuries, for, though this action is in form in covenant and contractual elements contained in the bond executed by the defendants are involved, it sounds in tort and, unless limited by statute, the common law rule with respect to the survival of actions operates to prevent any recovery against the defendants notwithstanding the provisions of the bond. See Byrd v. Byrd, 122 W.Va. 115, 7 S.E.2d 507. As is well known, at common law all actions for personal injuries, being personal actions, died with the person whether such person received or committed the injury and no such action could be maintained either by or against his personal representative. Flint v. Gilpin, 29 W.Va. 740, 3 S.E. 33; Curry v. Town of Mannington, 23 W.Va. 14. By statute, however, both in England and in this country, the common law rule has been restricted. The first restriction or limitation of the rule in this State arose under the statute which embodied the provisions known as Lord Campbell's Act, passed by the British Parliament August 26, 1846, which dealt with the right to recover for death due to negligence or wrongful act of another, Statutes at Large, 1846, 9 and 10, Victoria, Chapter 93; and which has served as a model for subsequent legislation in most of the States of the Union. Black's Law Dictionary, Third Edition, 269; Vol. 25, Words and Phrases, Perm. Ed., page 604. The statute relating to that subject gave a cause of action to the personal representative against any person who wrongfully caused the death of his decedent. See Curry v. Town of Mannington, 23 W.Va. 14; 17 C.J. 1185; 25 C.J.S., Death, § 15. This statute, with some variations and amendments from time to time, has been the law of this State from its formation. See Byrd v. Byrd, 122 W.Va. 115, 7 S.E.2d 507; Wilder v. Charleston Transit Co., 120 W.Va. 319, 197 S.E. 814, 117 A.L.R.

948. Originally it provided a cause of action in favor of the personal representative of the deceased person against the wrongdoer who caused his death but made no provision for the survival of the action against the personal representative of the wrongdoer in the event of the death of the wrongdoer. The statute, in the form in which it existed prior to its latest amendment appeared as Sections 5 and 6, Article 7, Chapter 55 of the Code of 1931. By an amendment to Section 5, adopted in 1931, the right of action was preserved in favor of the personal representative of the person whose death resulted from the wrongful act against the personal representative of the wrongdoer. Chapter 20, Acts of the Legislature of 1931, Regular Session. The only purpose of the amendment to the statute relating to an action for wrongful death, however, was to cause such action to survive as against the personal representative of the deceased wrongdoer. The amendment did not change the common law rule with respect to a person injured by the wrongdoer when such injuries did not result in the death of the injured person. See Byrd v. Byrd, 122 W.Va. 115, 7 S.E.2d 507.

A new statutory provision was incorporated in the Code of 1931 as Section 8, Article 7, Chapter 55. In its original form it declared that when an action is brought by a person injured for damage caused by the wrongful act of any person and pending the action the person injured died as a result of the wrongful act, the action should not abate by reason of his death but might be revived in the name of his personal representative. The section, by its terms, did not refer to an action by a person injured for damage caused by the wrongful act of another when the injuries did not cause the death of the injured person or provide for the survival of the action against the personal representative of a deceased wrongdoer. The section, however, was amended by Chapter 2, Article 7, Section 8, acts of the Legislature of 1945, Regular Session. As so amended the section is in this form: 'Where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person 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, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under said sections. But in such case there shall be but one recovery for the same injury. And any right of action which may hereafter accrue by reason of any injury done to the person of another, and not resulting in death, by the wrongful act, neglect or default of any person, shall survive the death of the wrongdoer and may be enforced against his executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer 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. Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable.'

The plaintiffs contend that this statute preserves the cause of action which accrued to John T. Carter in favor of his personal representatives and authorizes its revival in their name for the purpose of prosecuting the action to final judgment and that the statute is constitutional in that its title satisfies the mandate of Section 30, Article VI of the Constitution, that 'No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title.' The defendants challenge this position and insist that the...

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