Ickes v. Brimhall.

• Decision Date: 23 May 1938
• Docket Number: No. 4345.,4345.
• Citation: 42 N.M. 412,79 P.2d 942
• Parties: ICKESv.BRIMHALL.
• Court: New Mexico Supreme Court

42 N.M. 412

79 P.2d 942

ICKES

v.BRIMHALL.

No. 4345.

Supreme Court of New Mexico.

MAY 23, 1938.

Appeal from District Court, McKinley County; George W. Hay, Judge.

Action by Harold L. Ickes against Willard Brimhall, administrator of the estate of Frank W. Allen, deceased, for the wrongful death of plaintiff's wife from injuries sustained while riding in an automobile operated as a public conveyance. Judgment of dismissal after defendant's demurrer was sustained, and plaintiff appeals.

Affirmed.

The construction placed on a Missouri statute by a Missouri court after its adoption by New Mexico is not thereby adopted but is highly persuasive. Comp.St.1929, § 36-102.

Atwood & Malone, of Roswell, for appellant.

Harris K. Lyle, of Gallup, and C. R. McIntosh, of Santa Fe, for appellee.

SADLER, Justice.

We are asked to determine upon this appeal whether the cause of action for wrongful death provided by 1929 Comp. § 36-101 (amended, Laws 1931, c. 19) against common carriers, corporate or natural persons, survives the death of the statutory wrongdoer, no action having been instituted prior thereto.

In the case before us the owner and operator of the public conveyance was an individual. The vehicle was an automobile in which plaintiff's wife traveled as a passenger and from the claimed negligent operation of which she lost her life. She succumbed at the scene of the accident to injuries received therein. The driver, owner of the public conveyance, died a few days later from injuries suffered in the same accident. This action was commenced against his administrator to recover statutory damages of $7,500.00. The present appeal is prosecuted from a judgment of dismissal following the sustaining of a demurrer to plaintiff's complaint raising the question here presented. The single error assigned is the trial court's action in sustaining defendant's demurrer.

The cause of action asserted by plaintiff was created by Laws 1882, c. 61, § 1. The statute remained as originally enacted until amended by Laws 1931, c. 19, so as to increase the authorized recovery from $5,000.00 to $7,500.00. So amended it reads as follows:

“Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of Seven Thousand Five Hundred Dollars, which may be sued and recovered; first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother; or fourth, if the deceased be over twenty-one years of age and unmarried, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not of a negligent defect or insufficiency.”

The plaintiff puts forward two pertinent points in support of his claim of error: (a) That the cause of action survives by implication of the statute; (b) that the cause of action survives by reason of the provision of the survival statute (1929 Comp. § 105-1202) as an action for injury to personal estate. The parties are agreed, hence we do not question, that the cause of action created by the statute is a new and distinct one unknown to the common law; and that the damages recoverable under the statute are compensatory and not penal.

[1] The defendant appears before us with a favorable ruling below upon which a judgment, presumptively correct, was entered for him. It is seldom a party litigant can draw to his support such unanimity of opinion for the proposition urged as defendant has been able to do in the case at bar. Only compelling reasons should move us to disregard such a wealth of authority and none such have been advanced. The demurrer was properly sustained.

[2][3] Under the common law no cause of action for personal injuries resulting in death survived in favor of the personal representative of the deceased nor against the personal representative of the wrongdoer. 1 Am.Jur. 93, § 134, “Abatement and Revival;” 17 C.J. 1233, § 80, “Death.” In 1876, the common law, as recognized in the United States, was adopted as our rule of practice and decision. Laws 1876, c. 2, § 2 (1929 Comp. § 34-101). And, except as superseded or abrogated by statute or constitution, or held to be inapplicable to conditions in New Mexico, the common law remains the rule of practice and decision. Browning v. Browning, 3 N.M., Gild., 659, 9 P. 677; U.S. v. Tallmadge, 14 N.M. 293, 91 P. 729, 20 Ann.Cas. 46; Beals v. Ares, 25 N.M. 459, 185 P. 780.

[4] In Romero v. A., T. & S. F. Ry. Co., 11 N.M. 679, 72 P. 37, the territorial Supreme Court recognized the application of the common law rule against survivorship in the personal representative of a cause of action for wrongful death of his decedent. The court said:

“It will be admitted that at common law no action would lie for an injury caused by the death of a human being. If a right of action now exists, therefore, it must be by virtue of legislative enactment.”

It would be strange indeed if, as thus already held, the common law should prevail as the test of survivorship of a cause of action in favor of the personal representative of a decedent for wrongful death and yet be cast aside because said to be unsuited to our condition as the test of its survivorship against the personal representative of the wrongdoer. The latter proposition is urged upon us by counsel for the plaintiff. Yet he does not point out the respect in which conditions here so differ from conditions elsewhere as to withhold application of the common law rule denying survivorship in such a case.

In dealing with the very statute under which the present plaintiff seeks recovery, the territorial court in the Romero Case, supra, said:

“This statute, being in derogation of the common law, must be strictly construed, if its terms are of doubtful meaning; but, under the plain provisions of this statute, there is no provision made for an administrator or other personal representative to bring suit for recovery of damages under either section of the law of 1882.”

We conclude the cause of action asserted against defendant as personal representative of the alleged wrongdoer did not survive the latter's death by implication of the statute creating the right of action. 1 Am. Jur. 97, § 141, “Abatement and Revival”; Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73, 11 L.R.A.,N.S., 1157, and case note, 120 Am.St.Rep. 761, 12 Ann. Cas. 457 and case note; Hegerich v. Keddie, 99 N.Y. 258, 1 N. E. 787, 52 Am.Rep. 25, and the authorities cited from the several states in extensive annotations to be found in 61 A.L.R. 830, supplemented in 70 A.L.R. 1319.

[5][6][7] We shall quote only from the case of Bates v. Sylvester, supra, decided by the Supreme Court of Missouri. It has peculiar significance in view of the statement in Romero v. A., T. & S. F. Ry. Co., supra, that our statute was borrowed from Missouri and was identical with it. The Bates Case was decided long after we adopted the statute, hence there is no question of adopted construction. Furthermore, it was not the statute applicable to common carriers but rather the other statute equivalent to our 1929 Comp., § 36-102, which was...