Hendricks v. Kauffman

• Citation: 101 S.W.2d 84,340 Mo. 74
• Decision Date: 14 December 1936
• Docket Number: 33923
• Parties: Leona L. Hendricks et al., Appellants, v. F. E. Kauffman et al
• Court: United States State Supreme Court of Missouri

101 S.W.2d 84

340 Mo. 74

Leona L. Hendricks et al., Appellants, v. F. E. Kauffman et al

No. 33923

Supreme Court of Missouri

December 14, 1936

Appeal from Phelps Circuit Court; Hon. William E. Barton Judge.

Affirmed.

Irwin & Bushman, Harry L. Buchanan and Hutchison & Hutchison for appellants.

(1) The court erred in failing to find that this action filed prior to the death of F. E. Kauffman, the original defendant, does not survive against the present defendants as his administrators under the Missouri statutes. Secs. 3262-63-64 3280, R. S. 1929. (a) The court erred in failing to find that this action did not survive the death of the original defendant, F. E. Kauffman, and in holding that it would not lie against the present defendants, because it survives at common law. The general common-law rule of abatement of actions ex delicto upon the death of the wrongdoer does not apply where the actual wrong complained of is that of the defendant's agent, for which the principal is severally liable under the rule of respondeat superior. (b) At common law the principal and the agent were severally liable for the negligence of the agent under the rule of respondeat superior. Smith's Manual of Common Law, p. 434, Star page 366, First Am. from 4th London Ed.; Bartonshill Coal Co. v. Reid, 3 Macq. Sc App. Cas., l. c. 283. (c) Under the common law the maxim of actio personalis cum moritur persona only applies to actions ex delicto against the actual wrongdoer and does not apply to a case where the deceased defendant is sued as principal for the wrongs of his agent. Higgins v. Butcher, 1 Yelv. 89; 4 Bacon's Abridgment Master & Servant O., p. 594; White v. Spettique, 13 M. & W. 605; Stone v. Marsh, 6 B. & Cr. 551; 1 Hales, Pleas to the Crown, p. 476; 1 C. J. 185; Dayton v. Lyons, 30 Conn. 354; Aldridge v. Stout, 36 S.W.2d 1111. (d) Under the common law had the question of abatement been timely raised, the Springfield Court of Appeals had the power to require defendant to stipulate against dismissal on account of a party's death as a condition precedent to reversal and such condition would have been binding. Cox v. Railroad Co., 63 N.Y. 420; Griffith v. Williams, 1 Cromp. & Jer. 47; Palmer v. Cohen, 2 B. & Add. 966; 1 R. C. L. 21.

Clark, Boggs, Peterson & Becker for respondents.

(1) Appellants have no cause of action under the common law for the death of their father. (a) At common law, a cause of action for personal injuries resulting in death abates upon the death of either the wronged or the wrongdoer. Bates v. Sylvester, 205 Mo. 496; State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51, 45 A. L. R. 1466; Cummins v. K. C. Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 211; Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96; Wells v. Davis, 303 Mo. 388, 261 S.W. 58; City of Springfield v. Clement, 296 Mo. 150, 246 S.W. 175; Gilkeson v. Mo. Pac. Ry. Co., 222 Mo. 185; Burg v. Knox, 54 S.W.2d 797; Mobile Life Ins. Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580; Sec. 134, 1 Am. Jur., Abatement and Revival, p. 93. (b) Appellants' cause of action is not a common-law action but a new and distinct action given by statute. Secs. 3262, 3263, 3264, R. S. 1929; State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51, 45 A. L. R. 1466; Cummins v. K. C. Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 211. (2) Sections 3262, 3263, 3264 and 3280, Revised Statutes 1929, give appellants no cause of action against the personal representatives of the deceased defendant Kauffman. (a) Appellants' action, not lying at common law, can be maintained only if authorized by the explicit terms of a statute. Coover v. Moore, 31 Mo. 574; Bates v. Sylvester, 205 Mo. 493; Betz v. K. C. So. Ry. Co., 314 Mo. 390, 284 S.W. 457.

OPINION

Hays, J.

This is an appeal taken by the plaintiffs from a judgment of the Circuit Court of Phelps County sustaining defendants' motion in the nature of a plea in abatement puis darrien continuance and dismissing the cause.

Said motion, omitting caption, signatures, affidavit and jurat, is as follows:

"That this is an action of wrongful death instituted in the Circuit Court of Cole County on the 6th day of April, 1932, by the children of Charles F. Hendricks, deceased, against F. E. Kauffman, praying for damages, in the sum of ten thousand dollars. That thereafter the venue of said cause was changed to the Circuit Court of Maries County, where a trial was had on the 14th day of November, 1932, resulting in a verdict and judgment for the plaintiffs in the sum of four thousand dollars. That thereafter, the defendant, F. E. Kauffman, prosecuted an appeal to the Springfield Court of Appeals. That after submission of said cause in the Springfield Court of Appeals to-wit on the 5th day of May, 1933, the defendant, F. E. Kauffman, died. That thereafter the Springfield Court of Appeals reversed the judgment of the Circuit Court of Maries County and remanded the cause for a new trial. That the cause is now pending in this court on change of venue from Maries County applied for by and granted to the plaintiffs. That because of the death of the defendant, F. E. Kauffman, the cause of action of plaintiffs, if any, has abated and is no longer existent.

"Wherefore, in view of the premises M. K. Humble and Miles Hall, as administrators of the estate of F. E. Kauffman, deceased, pray the court to enter an order dismissing this action with prejudice and striking the same from the docket."

The opinion of the Court of Appeals is reported in 66 S.W.2d 985. After the venue was changed, the original papers and files having been lost, the clerk of the Circuit Court of Maries County, in accordance with a stipulation between the parties, certified to the Circuit Court of Phelps County the abstract of record used in the case in the Court of Appeals, to be considered as the original files and papers.

The question for solution is whether or not an action for wrongful death, such as this, brought under the Damage Act (Secs. 3262, 3263 and 3264, R. S. 1929, Mo. Stat. Ann., p. 3353 et seq.) abates upon the death of the tortfeasor after suit brought. It is the position of the respondents that such cause of action abated at common law and that its abatement is not now saved by statute. Appellants' position is that such an action does survive against the personal representatives of the deceased tortfeasor (a) under the common law; also (b) by virtue of Section 3280, Revised Statutes 1929; (c) that the motion to abate should not have been sustained because the question of abatement was not presented at the first opportunity, and (d) because respondents signed the stipulation to which reference has been made.

The appellants concede that at common law the general rule is that actions ex delicto abate upon the death of the wrongdoer, but they insist that this general rule does not apply where the actual wrong complained of is that of the defendant's agent, for which the principal is severally liable under the rule respondeat superior. [The petition charged that the father of the plaintiffs came to his death from being negligently knocked down and run over by a motor vehicle owned by defendant and operated by his agent, servant and employee.] In support of this point the appellants cite, among other authorities, Bartonshill Coal Co. v. Reid, 3 Macq. Sc. App. Cases l. c. 283; Higgins v. Butcher, 1 Yelv. 89; White v. Spettique, 13 M. & W. l. c. 605; 1 Hales, Pleas to the Crown, p. 473; Dayton v. Lyons, 30 Conn. l. c. 354-355; Alridge v. Stout (Tex. Civ. App.), 36 S.W.2d l. c. 1111-12. This point was not in the Texas case, nor was it essential to the decision in the Connecticut case. We are cited to no case in this or any other state, and our own research has disclosed none, in which this antiquated exception has been recognized or applied.

Furthermore, this is not a common-law action, but is one such as did not exist at common law; a new cause of action given by statute to named persons bearing a named relationship to the deceased and against designated persons, a cause of action which prior to the death of the injured person did not exist. [State ex rel. v. Daues, 314 Mo. 13, 283 S.W. 51.] In applying these statutes we apply such common-law principles and rules as we deem proper and advisable in the light of our precedents. In this State and in many others a cause of action for wrongful death, created by Damage Acts similar, as is ours, to Lord Campbell's Act (passed in 1846) does not survive to the estate or the personal representatives of the beneficiary. [1 Am. Jur., p. 96, sec. 139; Gibbs v. City of Hannibal, 82 Mo. 143; Gilkeson v. Mo. Pac. Ry. Co., 222 Mo. 173, 121 S.W. 138; Freie v. St. Louis-S. F. Ry. Co., 283 Mo. 457, 222 S.W. 824.] Nor does it survive against the personal representatives of the wrongdoer. [1 Am. Jur., p. 97, sec. 141; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73; Shippey v. Kansas City, 254 Mo. 1, 162 S.W. 137; Ryan v. Ortgier, 201 Mo.App. 1, 208 S.W. 865; 61 A. L. R. 830, reviewing decisions of many other jurisdictions.]

It is also urged by the appellants that Section 3280, supra, a survival statute, under a reasonable interpretation should be held applicable to injuries resulting in death. By that section it is provided, in substance, that causes of action under which suit has or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, shall not abate by reason of the death of the person injured, nor by reason of the death of the person against whom such cause of action shall have accrued; but such causes of action shall survive. This statute, as we view it, by very reason of the...