Hamel v. Southern Ry. Co

• Decision Date: 30 November 1914
• Citation: 108 Miss. 172,66 So. 426
• Court: Mississippi Supreme Court
• Parties: HAMEL v. SOUTHERN RY. CO

66 So. 426

108 Miss. 172

HAMEL v. SOUTHERN RY. CO

Supreme Court of Mississippi

November 30, 1914

October 1914

APPEAL from the circuit court of Sunflower county. HON. MONROE MCCLURG, Judge.

Action by Mrs. Myrtle Hamel against the Southern Railroad Company. From a judgment of dismissal, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded. Suggestion of error overruled.

Frank E. Everett, for appellant.

The court will readily see that the sole question in this case is whether or not section 721, Code of 1906, as amended by chapter 167 of the Laws of 1908, and section 2091 of the Code of 1906, and which is section 1916 of the Code of 1892, give rise to two different and distinct causes of action. It is my contention that these sections create two different and distinct causes of action. Section 2091 of the Code of 1906 is as follows: "Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. And they shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased." This section was brought forward from the Code of 1892, being section 1916 of that Code, and into that it was practically copied from the Code of 1880, being section 2078 of that Code.

It has been the law of Mississippi, at least since 1880, that suits filed by a party in his lifetime survived him upon his death and if they had not begun in his lifetime then his executor or administrator could begin and prosecute such actions as his personal representative in any court of this state. At common law no such right existed. When a party, who had a cause of action for some injury or injuries done him, died in him died his cause of action; but by statute the common law was changed so as to provide for a survival of such action, and when a recovery is had by his personal representative after his death, the amount so recovered becomes a portion of his estate, and is subject to debts and distribution as any other personal property that he might have owned in his lifetime; the personal representative can only recover such damages as could have been recovered by his intestate, had he lived; and since the creation of the survival statute it has never been questioned but what the personal representative of the deceased, when the cause of action was revived in his name, could recover such damages as could have been recovered by the party, had he lived.

In the suit of Mrs. Myrtle Hamel, administratrix of the estate of James B. Hamel, No. 16496 on the docket of this court punitive damages were not recovered, and I refer the court to the record in that case for the purpose of showing that no recovery was had except such as could have been recovered by Mr. Hamel, had he lived and prosecuted the suit to judgment.

Section 721 of the Code of 1906, as amended by chapter 167, Laws of 1908, provides for a separate and distinct recovery by the next of kin, and which is separate and distinct from any action that might be brought by the administrator. This section is in part as follows: "Whenever the death of any person shall be caused by any real, wrongful or negligent act, or omission, or by such unsafe machinery, way or appliances, as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband, or father, or mother, or sister, or brother, the person or corporation, or both, that would have been liable if death had not ensued, and the representative of such person shall be liable for damages, notwithstanding the death and the fact that death is instantaneous shall in no case, affect the right of recovery."

The statute then provides in whose name the suit shall be brought and enumerates those who might bring it, being the widow for death of her husband, or the husband for the death of his wife, or by parent or child, or that all of the parties may join in a suit; and it provides that there shall be but one suit for the same death, meaning, of course, that all of the next of kin, regardless of the number, must be bound by one suit, and cannot bring each an independent suit; it further provides, in express terms, that "executors, or administrators, shall not sue for damages or injuries causing the death, except as below provided" then it provides further: "If the deceased have neither husband or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representatives, subject to debts and general distribution, and the executor may sue for and recover such damages on the same terms as are prescribed for recovery by the next of kin in this section, and the fact that the deceased was instantly killed shall not affect the right of the legal representatives to recover."

By the very language of this section it is clear that the legislature intended, in the enactment of this section, that a separate and distinct right of action and recovery should be given to the widow or next of kin of the deceased for his death; if that were not true the legislature would have omitted from this section the latter portion thereof, where it makes provisions for the recovery by the personal representative in case there be no next of kin, as enumerated in the statute. It expressly provides that when there is a recovery for the death of a person by the next of kin: "Damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased."

Instead of contracting the liability and the scope of recovery, this section expands it, and gives to the personal representative of the deceased a right of action which he did not have before the enactment of this section. If death was instantaneous, the personal representative had no right of action for the death, because there was no right of action in the deceased, and no one but the next of kin could bring the suit.

In support of the proposition that two separate and distinct rights of action are given by the two statutes above referred to, I call the court's attention to the case of Mahoning Valley Railway Company v. Thomas P. Van Alstine, Administrator, 77 Ohio State Reports, 395, 14 L. R. A. (N. S.), p. 893; Leggott v. Great Northern Railway Company (L. R.), 1 Q. B. Div. 599; Bradshaw v. Lanshire & Y. R. Co. (L. R.), 10 C. P. 189; Robinson v. Canadian P. R. Co., A. C. 481; Whiteford v. Panama R. Co., 23 N.Y. 465; Putman v. Southern P. Co., 21 Ore. 230; Davis v. St. Louis, I. M. & S. R. Co., 53 Ark. 117, 7 L. R. A. 283; Belding v. Black Hills & Ft. P. R. Co., 2 S.D. 369; Hendrix v. Ilwaco R. & Nav. Co., 4 Wash. 400, 30 P. 714; Bowers v. Boston, 155 Mass. 244; Brown v. Chicago & M. V. R. R. Co., 102 Wis. 317; V. & M. Railroad Co. v. Phillips, 46 Miss. 702; McVey v. Railroad Co., 73 Miss. 492; St. Louis & S. F. R. Co. v. Moore, et al., 85 So. 471; Meekin case, 164 N.Y. 145; Woods v. Wesson N.Y. R. R. Co., 126 N.Y. 10.

Tim E. Cooper, for appellant.

It is submitted that nothing is to be gained by considering conflicting authorities in other states under statutes by which an action brought by an injured party to recover for injuries tortiously inflicted upon him, notwithstanding his death, may be prosecuted by his personal representatives; and by which an action is given to those injured by the death of the injured party to recover for their injuries, are separate and distinct causes of action upon which two suits may be maintained, or whether a recovery on one of the suits may be pleaded in bar of the second.

Nothing is to be gained by such investigations, for it cannot be denied, and is conceded that, in this state, it is settled that the injuries, to redress which the action may be brought or maintained, are distinct in their nature, and that in the absence of a controlling statute two suits are distinct in their nature, and that in the absence of a controlling statute two suits are maintainable. Railroad Co. v. Phillips, 64 Miss. 693; McVey v. Railroad Co., 73 Miss. 492. In the absence of statute, if the death of the injured party was instantaneous, he had no right of action against the wrongdoer, and his administrator could not sue. Railroad Co. v. McVey. And although the death of the party gave, under the statute, a right of action to his widow as such, a recovery could not be had by her suing as administratrix, and as such she is the representative only of the deceased. McVey v. Railroad Company. At common law, actions for tort against the person did not survive to his administrator. This rule, and this rule only, was changed by our statutes on that subject. Code of 1880, paragraph 1513; Code of 1906, paragraph 1918; Code of 1906, paragraph 2093.

By our statute there has been giving surviving relatives, a right of recovery for the death of the deceased. Code of 1880, paragraph 1510; Code of 1892, paragraph 663; Code of 1906, paragraph 721. Under the Codes of 1880 and 1892, two suits might have been brought, and two suits must have been brought to recover for the injury done to the deceased, and for the injury done to the next of kin.

The administrator could not recover for the injury resulting to the next of kin by the death; nor could the next of kin suing for injuries resulting to them by the death, recover for the injury sustained by the deceased to himself or his estate. By the Code of 1906, there were four important changes as to the substantive rights of the parties plaintiff. First, the fact that death was instantaneous does not...