Doggett v. Boiler Engineering & Supply Co.

• Decision Date: 08 December 1970
• Docket Number: No. 10556,10556
• Court: Idaho Supreme Court
• Parties: Charlottie Verlene DOGGETT, surviving widow and Administratrix of the Estate of Cloyd Doggett, deceased, Plaintiff-Appellant, v. BOILER ENGINEERING & SUPPLY CO., Inc., a Corporation, Bradley Boiler Co., a Corporation, Electronics Corporation of America, Combustion Control Division, a Corporation, Controls and Instruments Division of International Telephone and Telegraph Corporation, a Corporation, Optimum Controls Corp., a Corporation, Edward Liversidge and James F. Williams, Defendants-Respondents.

Page 511

477 P.2d 511

93 Idaho 888

Charlottie Verlene DOGGETT, surviving widow and Administratrix of the Estate of Cloyd Doggett, deceased, Plaintiff-Appellant, v. BOILER ENGINEERING & SUPPLY CO., Inc., a Corporation, Bradley Boiler Co., a Corporation, Electronics Corporation of America, Combustion Control Division, a Corporation, Controls and Instruments Division of International Telephone and Telegraph Corporation, a Corporation, Optimum Controls Corp., a Corporation, Edward Liversidge and James F. Williams, Defendants-Respondents.

No. 10556.

Supreme Court of Idaho.

Dec. 8, 1970.

Church, Church & Snow, Burley, for appellant.

Baum & Peterson, Pocatello, for respondents Boiler Engineering & Supply Co., Inc., and Edward Liversidge.

Parry, Robertson, Daly & Larson, Twin Falls, for respondent Bradley Boiler Co.

Merrill & Merrill, Pocatello, for respondent Electronics Corp. of America, Combustion Control Division.

Eberle & Berlin, Boise, for respondent Controls and Instruments Division of International Telephone and Telegraph Corp.

Schwartz & Doerr, Twin Falls, for respondent Optimum Controls Corp.

Benoit, Benoit & Alexander, Twin Falls, for respondent James F. Williams. SHEPARD, Justice.

On October 13, 1966, Cloyd Doggett was injured in the explosion of an industrial boiler which was being installed in a plant where Doggett was an employee. It is alleged that Doggett suffered severe personal injuries and that by reason thereof, he was permanently disabled and unable to obtain gainful employment. It is further alleged that he incurred substantial medical and hospital expenses, together with a loss of wages to the time of the filing of the complaint and that he would suffer additional damages for future medical expenses, suffer loss of wages, and would have pain and suffering thereafter.

Cloyd Doggett instituted suit against the manufacturer and the installer of the boiler and also against various manufacturers of component parts of the boiler. The suit sought recovery for damages for personal injuries to the plaintiff Cloyd Doggett, as aforesaid, and was based upon the theories of negligence and strict liability. The case was before this Court for a determination of jurisdiction over certain of the component part manufacturers. In Doggett v. Electronics Corp. of America, et al., 93 Idaho 26, 454 P.2d 63, we found in favor of the plaintiff Cloyd Doggett on the question of jurisdiction and the cause was remanded for trial. Subsequent to remand, but prior to the time of the trial, and on August 12, 1969, Cloyd Doggett died.

Charlottie Verlene Doggett, widow of Cloyd Doggett and Administratrix of his estate, then moved to be substituted as party plaintiff. That motion was resisted by defendants and some of the defendants then filed a motion for summary judgment on the ground that since the plaintiff had died, the action had abated. The trial court denied the motion of plaintiff's widow to be substituted as party plaintiff, granted the defense motion for summary judgment, and upon the Court's own motion, dismissed the complaint. From those orders of the Court, Charlottie Verlene Doggett appeals.

It is contended by the defendants-respondents that the common law rule expressed in the maxim actio personalis moritur cum persona (a personal right of action dies with the person) is a portion of the law in this state and that actions for personal injuries abate with the death of the plaintiff. Respondents contend that since the action has abated, the trial court was correct in its denial of the motion to substitute Doggett's widow as plaintiff in this cause. Appellant, on the other hand, contends that even if the common law rule was in existence in this state, such has been abrogated by the legislative enactment of community property laws in the State of Idaho.

The origin and effect of the rule and maxim actio personalis moritur cum persona in the early common law is obscure. Students of the common law seem to agree that the maxim and rule, if it ever had any significant validity, was greatly restricted to trespasses and torts that constituted a felony. It is apparent that the wrongs which later came to be represented by writs of trespass had a criminal and later a quasicriminal origin. See Holdsworth, A History of the English Law, Vol. 3.

Professor Percy Winfield of Cambridge University, 29 Columbia Law Review 239, indicates that neither the Roman law nor the Canon law was responsible for the maxim and 'acquits Bracton of the parentage of this queer offspring.' He further suggests that regardless of statements to the contrary, Coke did not invent it. Winfield, after examining cases in the 16th and 17th centuries, states: '* * * (i)t may fairly be said of these that with scarcely a single exception the maxim was always uttered in circumstances, or with qualifications, that cut down its application to the law of torts and usually comes from counsel who are snatching at another language in order to screen a hopeless argument of their own.'

By the time of Blackstone, we find him saying: '* * * (i)n actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona; and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury.' 3 Blackstone Commentaries 302.

It appears clear that the rule as to nonsurvival of causes of action for tort came into being because of the criminal character of acts in the early common law and was pointed toward serious intentional wrongs. Publix Cab Company v. Colorado National Bank of Denver, 139 Colo. 205, 338 P.2d 702 (1959). The Court in Publix points out that the rule of non-survival is a vestige of the ancient concept of violent torts and owes its existence to historical accident and blind adherence to precedence.

In contrast to the violent tort concept as being a criminal or quasi-criminal matter, it should be noted that the type of tort based on the negligence of the wrongdoer was not recognized until the 19th century. We note at this point that it seems illogical that a rule laid down in the earliest common law to prevent the continuation of actions in the case of violent and deliberate acts should be applied to acts of negligence for which no action existed until the mid-19th century.

Across the United States decisions of courts and enactments of legislatures have changed the common rule as to abatement of actions to the extent that little, if any, of it today remains. 29 Michigan Law Review 969. Professor Alvin E. Evans, then Dean of the University of Kentucky Law School, in 29 Michigan Law Review 969, points out that it is almost 'inconceivable' that we should continue to deny survival of actions where the estate of the injured person has been lessened and states there should be no difference in the principles involved, regardless of whether intentional or negligent injuries are involved.

Respondent argues that, regardless of the lack of unanimity in other jurisdictions regarding the theory of abatement of a cause of action upon the death of a plaintiff at common law, nevertheless the decision of the Court in Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), is controlling in the case at bar. Respondent correctly points out that Bullock stated that an action ex delicto did not survive the death of either party. The Court however in Bullock had for consideration an action involving the death of a tort feasor. It held that the action did not survive the tort feasor's death. The legislature promptly thereafter struck down the ruling of the Court in Bullock by the enactment of I.C. 5-327 permitting the survival of an action against a deceased tort feasor. The legislature had before it a specific holding of the Court that the death of a tort feasor abated an action ex delicto and it acted to negate that holding of the Court. We cannot agree with the respondent that such legislative action shows an intent to continue abatement of an action upon the death of the recipient of a wrong. The ascertainment of the legislative intent from its actions is many times difficult and to attempt to ascertain legislative intent from inaction is, we submit, next door to impossible. In any event, to the extent that Bullock suggests that an action ex delicto abates upon the death of the plaintiff in a case such as presented herein, it is overruled.

Respondent cites Norton v. City of Pomona, Cal.App., 43 P.2d 586 (1935); Munchiando v. Bach, 203 Cal. 457, 264 P. 762 (1928), and Bortle v. Osborne, 155 Wash. 585, ...