Dunsmore v. Hartman

• Citation: 140 W.Va. 357,84 S.E.2d 137
• Decision Date: 26 October 1954
• Docket Number: No. CC818,CC818
• Court: Supreme Court of West Virginia
• Parties: Helen McClure DUNSMORE, Executrix of the Estate of Jewette Frederick Dunsmore, Deceased, v. John Esby HARTMAN.

Page 137

84 S.E.2d 137

140 W.Va. 357

Helen McClure DUNSMORE, Executrix of the Estate of Jewette

Frederick Dunsmore, Deceased, v. John Esby HARTMAN.

No. CC818.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1954.

Decided Oct. 26, 1954.

Syllabus by the Court

A demurrer to a declaration wherein damages for wrongful death are demanded in one count and damages to property are demanded in another count, should be sustained notwithstanding all of such damages are alleged to have resulted from the same wrongful act of defendant.

Dodrill, Barrett & Dunbar, Huntington, for plaintiff

Ralph J. Bean, Charles H. Bean, Moorefield, for defendant.

GIVEN, President.

Plaintiff, Helen McClure Dunsmore, executrix of the estate of Jewette Frederick Dunsmore, deceased, instituted an action in the Circuit Court of Pendleton County, against defendant, John Esby Hartman, for recovery of damages alleged to have occurred from an automobile collision. The declaration contained two counts. The first count alleged damages for wrongful death in the amount of ten thousand dollars. The second count alleged damages to the automobile of plaintiff's decedent in the amount of four hundred dollars. Defendant demurred to the declaration for the reason that it 'has improperly included a count alleging property damage with a count in which damages for wrongful death are alleged, and Plaintiff has thereby sued Defendant for a total sum in excess of that allowed by statute'. The trial court overruled the demurrer as certified the question arising thereon to this Court.

The question certified is: 'In the declaration in Trespass on the Case, in which plaintiff seeks damages for wrongful death in the amount of $10,000.00, can plaintiff also include a count in which plaintiff seeks to recover $400.00 damages for injuries caused decedent's automobile, when it is alleged that the death and the damage to the automobile occurred in the same collision?'

Plaintiff contends that since the demands of plaintiff are against the same defendant, and since both damages for wrongful death and the property damages resulted from a single wrong, there can be but one cause of action. In other words, plaintiff says that the damages for wrongful death and the property damages merely constitute different elements of damages and not different causes of action.

We are of the view that the question raised on the demurrer has been answered in the negative by the decision in the case of Alloy v. Hennis Freight Lines, W.Va., 80 S.E.2d 514, 515. In that case an action was instituted by Alloy for damages for personal injuries received by him in an automobile collision. Alloy died of the injuries before trial and, under Code, 55-7-5, as amended, the action was revived in the name of his personal representative. On the trial, a verdict was returned for plaintiff in the amount of $11,062.63. It was stipulated that ten thousand dollars thereof constituted damages for wrongful death, and that $1,062.63 thereof constituted property damages. This Court set aside the verdict and held: '1. Under Chapter 55, Article 7 of the Code, as amended by Chapter 2, Acts of the Legislature, Regular Session, 1945, and Chapter 4, Acts of the Legislature, Regular Session, 1949, if a person dies of injuries, occasioned by the wrongful act of another, pending trial of an action to recover for such injuries, such action may be revived in the name of his personal representative, but such further proceedings shall conform to an action for wrongful death in which recovery is limited to the amount of $10,000.'

In Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128; 14 A.L.R. 520n; 23 A.L.R. 636n, 676n, the Court stated : '* * * At the common law, there was no right of action for damages for injury occasioned by the death of a person by a wrongful act. The right was first given by an English statute known as Lord Campbell's Act. It created only rights of action in certain persons. The recovery in such an action did not become a part of the estate of the deceased person. The express purpose was compensation to such persons as were pecuniarily injured by death inflicted or caused by wrongful acts. Our first statute on the subject, passed November 9, 1863, was the same in general purpose and effect as the English statute. It provided that the amount recovered in every such action should be for the exclusive benefit of the widow and next of kin, and required the jury to give such damages as they should deem fair and just, not exceeding $5,000, with reference to the pecuniary injury resulting from such death to the wife and next of kin. As amended and re-enacted, in part, by chapter 105 of Acts 1882, it still gives mere rights of action. The recovery is not subject to any debt or liability of the deceased, and goes to his next of kin, not by virtue of the statute of descents and distributions, but by force of the act giving the right of action. The other statute is adopted only as a means of ascertaining the beneficiaries.'

In Burgess v. Gilchrist, 123 W.Va. 727, 17 S.E.2d 804, 806, 138 A.L.R. 676, it is stated: ' * * * American statutes authorizing recovery for wrongful death are merely adoptions, or adaptations, of the English 'Lord Campbell's Act', enacted by the British Parliament in 1846. Our statute, like its prototype, clearly created a new right of action and operated for the benefit, not of the decedent's estate,...