Gibbs v. City of Hannibal

• Court: United States State Supreme Court of Missouri
• Writing for the Court: RAY
• Citation: 82 Mo. 143
• Parties: GIBBS, Administrator, Appellant, v. THE CITY OF HANNIBAL.
• Decision Date: 30 April 1884

82 Mo. 143

GIBBS, Administrator, Appellant,
v.
THE CITY OF HANNIBAL.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Ralls Circuit Court.--HON. JOHN T. REDD, Judge.

AFFIRMED.

Thomas H. Bacon for appellant.

(1) The Missouri statute of survivorship of actions, and the damage act of Missouri were imported from New York. Nagel v. Murdock, 75 Mo. 666. (2) The widow's cause of action is not for a personal tort. Quinn v. Moore, 15 N. Y. 432. It will survive her and she can assign the claim. Byxbie v. Wood, 24 N. Y. 606. The action appeals to no common law right, and rests upon no common law principle. Whitford v. Panama, 23 N. Y. 465. The damage act makes the life of the deceased statutory property. Yertore v. Wiswall, 16 How. (N. Y.) 12, 13. Compare Stafford v. Drew, 3 Duer 627. (3) The gravamen of the action for the husband's death is the injury to his person, for which

[82 Mo. 144]

he might, while living, recover damages. Proctor v. Railroad Co., 64 Mo. 112; White v. Maxey, 64 Mo. 552; Elliott v. St. Louis, 67 Mo. 272. This cause of action, outliving the husband, becomes eo instanti vested in the widow, by whose death it never could and never did abate. Cowen v. Moore, 31 Mo. 574; Kennedy v. Burrier, 36 Mo. 130; Sedgwick on Dam., (6 Ed.) p. 698; Railroad Co. v. Barron, 5 Wall. 90; Doedt v. Wiswall, 15 How. Pr. 128. (4) The cause of action under section 3 of the damage act is not elemental but composite, and one of its factors is “the necessary injury resulting from the death,” and such injury may be to proprietary rights so as to cause pecuniary damage. Owen v. Brockschmidt, 54 Mo. 285; Murphy v. New York, 88 N. Y. 445. And the jury may look at matters of aggravation, if any such there be. Morgan v. Durfee, 69 Mo. 418; Joice v. Branson, 73 Mo. 29; Nagel v. Missouri, etc., 75 Mo. 666. And causes of action for such injuries to proprietary rights survive to the administrator. Wag. Stat., p. 87, §§ 29, 30. (5) The pecuniary impairment of a widowed mother's estate by the funeral expenses, ( Pack v. Morgan, 3 Comst. (N. Y.) 489,) of her child killed by another's negligence, did always create, under the territorial law of 1816, (1 Terr. Laws, 436; Wag. Stat. 1872, p. 886, § 1,) importing English statutes (4 Edw'd III, C. 7) and decisions up to 1607, (Owen 99, Latch 167, 168,) a cause of action surviving to the administrator, ( Chamberlain v. Williamson, 2 M. & Sel. 408, 416,) and if under the damage act of 1855, (R. C. 1855, p. 648; Wag. Stat. 1872, p. 520,) a cause of action therefor cannot be shown, the averment of such special and pecuniary damage to estate is nevertheless good as the gravamen of a suit by the administrator for such special damage, including matters in aggravation maintainable under either the said enactment importing the English statutes and construction, (Wag. Stat. 1872, p. 886, § 1,) or the survivorship statute of 1835, (R. C. 1835, p. 48, § 24; Wag. Stat 1872, p. 87, § 29,) and if under the circumstances a cause of action cannot exist in the administrator

[82 Mo. 145]

by virtue of the posthumous damage act, the petition is good as showing a cause of action under the general law, ( Comings v. Hannibal, 49 Mo. 512, p. 517; Garner v. Hannibal, 34 Mo. 235, p. 240; Altantic v. Freeman, 61 Mo. 80; Hewitt v. Harvey, 46 Mo. 368; Northcraft v. Martin, 28 Mo. 469; Easly v. Prewitt, 37 Mo. 361,) that is to say it is “such action,” (Wag. Stat. 1872, p. 87, § 29,) as might “be brought by the person injured” ( Ib.) “for wrongs done to the property, rights or interest of” ( Ib.) herself. (6) As to the person injured, the cases of instantaneous death are within the statute perpetuating the cause of action. Shearman & Redfield on Neg., (3 Ed.) p. 368, § 300. (7) The question of survivorship in case of loss of life by common calamity, does not arise on the record as the averments establish an interval of time between the deaths of the husband and children on the one hand, and the death of the widow on the other hand. But survivorship without appreciable interval is recognized by the civil law, (Kent Com., (11 Ed.) vol. 2, pt. 5; Lect. 37, p. 563, side 535,) and the colonial civil law of Missouri has not been abrogated. ( Moreau v. Detchemendy, 18 Mo. 522.) The common law, so far as it existed, was simply made paramount; and as on such subject the common law is silent, the colonial civil law prevails. ( Lindell v. McNair, 4 Mo. 380, pp. 383, 384. Compare Miller v. Dunn, 216, p. 220.) And such law is the subject of judicial notice. Ott v. Soulard, 7 Mo. 573; Chouteau v. Pierre, 9 Mo. 3. The widow's interest was property, (Wag. Stat. 1872, p. 888, § 6, last clause,) and, therefore, it survived.

W. C. Foreman, B. F. McPherson and W. H. Russell, City Attorney, for respondent.

(1) The petition is not good under the damage act, under which it was evidently brought, the beneficiaries being specially mentioned in the act, who alone are authorized to sue. R. S. 1879, §§ 2121, 2122, 2123. (2) The whole family, constituting all the beneficiaries under the

[82 Mo. 146]

act, having perished together, no action can be maintained for want of a beneficiary. Cooley on Torts, (1 Ed.) 267, 269. (3) In actions under this act where the petition shows at most only nominal damages, it will not be sustained, it only being intended to benefit actual sufferers. Cooley on Torts, (1 Ed.) p. 270. The petition in this case cannot be sustained under section 96, chapter 5, Revised Statutes, because: 1st, All actions for damages growing out of death by...