Hazzard v. Alexander

• Decision Date: 29 June 1934
• Citation: 36 Del. 212,173 A. 517
• Court: Delaware Superior Court
• Parties: ELLA L. HAZZARD, Widow of John Fred Hazzard, Deceased, v. PAUL ALEXANDER

173 A. 517

36 Del. 212

ELLA L. HAZZARD, Widow of John Fred Hazzard, Deceased, v. PAUL ALEXANDER

Superior Court of Delaware, Sussex County

June 29, 1934

Superior Court for Sussex County, No. 13, October Term, 1933.

Demurrer to the plaintiff's declaration.

On April 24, 1932, John Fred Hazzard, a gratuitous passenger in an automobile owned and operated by the defendant, suffered injury in an accident from which he subsequently died. The plaintiff, his widow, on August 22, 1933, brought suit against the defendant, alleging negligent operation of the automobile in several particulars. The statute, Section 4155, Revised Code 1915, under which the action was instituted provided,

"Whenever death shall be occasioned by unlawful violence or negligence and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."

On May 22, 1933, by Chapter 26, Vol. 38, Laws of Delaware, it was provided that

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident unless such accident shall have been intentional on the part of such owner or operator or caused by his wilful or wanton disregard of the rights of others." Section 1.

It was not alleged in the declaration that the accident was intentional, or caused by gross negligence, that is, by the wilful or wanton disregard by the defendant of the rights of the deceased. The defendant demurred generally on the ground that, by the latter statute, the right of action authorized by Section 4155 was barred.

The plaintiff contended (1) that the right of action was a vested right which was not divested by the statute; (2) that in any event, whether the right of action be regarded as a vested right or not, the right had accrued prior to the passage of the statute, and, there being nothing in the statute which clearly indicated that it was to be given a retrospective interpretation, it had no application to accrued rights of action and must be given a prospective interpretation.

Demurrer is sustained.

Howard W. Bramhall for plaintiff.

William S. Potter (of Ward and Gray) for defendant.

LAYTON C. J., and RICHARDS, J., sitting.

OPINION

LAYTON, C. J.

The question presented is, whether the enactment of the statute on May 22, 1933 (38 Del. Laws, c. 26), deprived the plaintiff of her cause of action, under Section 4155, Revised Code 1915, which had accrued to her on April 30, 1932, the date of her husband's death. The right of action existed solely by virtue of Section 4155, a variation of Lord Campbell's Act. Prior to this statute, the common law maxim, actio personalis moritur cum persona, applied. Perry v. Philadelphia, B. & W. R. Co., 1 Boyce (24 Del.) 399, 77 A. 725. By the statute, if the injured party died, having in his life time brought no suit, a new right of action on behalf of the statutory party, in this case, the widow, arose, based, of course, upon the original tort. Homiewicz v. Orlowski, 4 W. W. Harr. (34 Del.) 66, 143 A. 250. Being a statutory right of action, delictual in its nature, the defendant urges that the plaintiff has no vested right or interest therein, and that the Legislature could take away the right of action at any time before final judgment without violating the state or federal constitutions; and further, that it was the plain intention of the Legislature, not having incorporated in the act a saving clause, to bar all actions for damages against the owner or operator of a motor vehicle for injuries, loss or death, suffered by a gratuitous passenger as a result of ordinary negligences whether such actions had accrued or not.

Prior to the passage of what is now Section 4155, Chapter 31, Vol. 13, Laws of Delaware, in 1866, as amended by Chapter 210, Vol. 22, Laws of Delaware, public policy, as established by the common law, decreed that the life of a person could not be made the subject of valuation. The public conscience demanded that this public policy be changed, and that relief be granted in cases where the common law gave no relief. This policy existed and continued until May 22, 1933, when the Legislature for the purpose of correcting abuses and evils originating in the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles enacted Chapter 26, Vol. 38, and such legislation is undoubtedly within the constitutional power of the Legislature to enact, Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A. L. R. 939, its effect being to take away the remedy in a certain class of cases. Wilson v. Head, 184 Mass. 515, 69 N.E. 317. The Legislature, before the enactment of the present statute, had attempted to correct the same evils and abuses. By Chapter 270, Vol. 36, Laws of Delaware, the owner or operator of a motor vehicle was "relieved from any liability whatsoever for injuries suffered or sustained by any person while riding with said operator or in said owner's car free of charge." Section 1. This statute, not differentiating between ordinary negligence and gross negligence, was held to be unconstitutional in Coleman v. Rhodes, 5 W. W. Harr. (35 Del) 120, 159 A. 649, in an opinion handed down on April 11, 1932.

Neither the present statute, nor the prior unconstitutional statute, contain provisions saving accrued or pending rights of action. Neither is there any constitutional provision, as exists in some states, forbidding the enactment of retroactive laws, nor any general statute preserving rights of action accrued or pending under repealed statutes.

We are of the opinion that the right of action under the second paragraph of Section 4155 is not such a vested right as may not be divested by subsequent legislation operating as a partial repeal of the statute under which the right of action arose.

A vested right is something more than a mere expectation based upon an anticipated continuance of the existing law. 1 Sutherland, Stat. Cons., § 284; 2 Cooley Const. Lim. (8th Ed.) 749. Regard must be had for the general welfare and public policy; and, a vested right cannot be one which is to be examined, settled and defended, on a distinct and separate consideration of the individual case, but rather on broad and general grounds, which embrace the welfare of the whole community. 2 Cooley, supra, 745.

There can be no vested right in a claim for damages for a statutory tort, not connected with or growing out of a contractual relation until judgment is rendered, for, prior to judgment, the claim is a mere expectancy, or an inchoate right, not assignable, nor liable to attachment, and not a debt. Carson v. Gore-Meenan Co. (D. C.), 229 F. 765.

The rule that a vested right of action is property just as tangible things are, and is protected from arbitrary legislation, applies to those rights of action which spring from contracts or the common law. 2 Cooley, supra, 756; Collins v. East Tenn., etc., R. Co., 9 Heisk. (Tenn.) 841; Butler v. Palmer, 1 Hill (N.Y.) 324; Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A. L. R. 1327; Bennet, Adm'r, v. Hargus, 1 Neb. 419.

No one has a vested right in a public law, but the Legislature may repeal or amend all legislative acts not in the nature of contracts or private grants. Arnold & Murdock Co. v. Industrial Commission, 314 Ill. 251, 145 N.E. 342, 40 A. L. R. 1470; Wall v. Chesapeake & O. R. Co., 290 Ill. 227, 125 N.E. 20. As said in Bailey v. School Dist., 108 Wash. 612, 185 P. 810, 811,

There is "no vested right, prior to judgment, in a policy of legislation which entitled him to insist that the policy be maintained for his benefit;" and the same Court said in Robinson v. McHugh, 158 Wash. 157, 291 P. 330, that where a tort action can be brought only by virtue of a statute, there can be no vested right therein and the Legislature may take away the right at any time. A vested right was defined in State v. Hackmann, 272 Mo. 600, 199 S.W. 990, as one which is absolute, complete, and unconditional to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency. See, also, Wilson v. Head, 184 Mass. 515, 69 N.E. 317, supra; Stone v. Boston & M. R. Co., 7 Gray (Mass.) 539; Sibley v. Nason, 196 Mass. 125, 81 N.E. 887, 12 L.R.A. (N. S.) 1173, 124 Am. St. Rep. 520, 12 Ann. Cas. 938.

It is, of course, true that when a right has arisen on a contract, or a transaction in the nature of a contract authorized by a statute, and has been so far perfected that nothing remains to be done by the party asserting such right, it has become a vested right which stands independent of the statute, and will not be affected by a repeal of the statute. 1 Sutherland, supra, § 284; Pacific Mail S. S. Co. v. Joliffe, 69 U.S. 450, 2 Wall. 450, 17 L.Ed. 805; Van Inwagen v. Chicago, 61 Ill. 31; State v. Phalen, et al., 3 Del. 441, 3 Harr. 441; but that is not the character of the right presented for consideration.

In support of her contention, the plaintiff cites Gladney v. Sydnor, 172 Mo. 318, 72 S.W. 554, 60 L.R.A. 880, 95 Am. St. Rep 517; Lowe v. Harris, 112 N.C. 472, 17 S.E. 539, 22 L.R.A. 379; Arnold & Murdock Co. v. Industrial Commission, supra; Pearsall v. Great Northern R. Co., 161 U.S. 646, 16 S.Ct. 705, 40 L.Ed 838; Case of Shink, 120 Me. 80, 113 A. 32; Oriental Bank v. Freeze, 18 Me. 109, 36 Am. Dec. 701, and Lewis v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 18 L.R.A. (N. S.) 279, 13 Ann. Cas. 1142. The...