J.J. Newman Lumber Co. v. Scipp

• Decision Date: 20 March 1922
• Docket Number: 22468
• Citation: 128 Miss. 322,91 So. 11
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. SCIPP

91 So. 11

128 Miss. 322

J. J. NEWMAN LUMBER CO. v. SCIPP

No. 22468

Supreme Court of Mississippi

March 20, 1922

APPEAL from circuit court of Lamar county, HON. G. WOOD MAGEE Special Judge.

Action by Fannie Scipp against the J. J. Newman Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

S. E Travis and L. Hennington, for appellant.

The plea in abatement set up a good, complete defense to the declaration sued on in the instant case. The allegations thereof were full and complete. It alleged that the said suit was a prior suit involving the same cause of action and subject-matter and substantially the same parties, and that it was pending in a court of competent jurisdiction. Appellee's demurrer to this plea admitted all the facts so pleaded.

It is thus seen that the suit first instituted in point of time was by the administratrix, the personal representative of the deceased, and that the instant case, the suit last instituted in point of time, was by the widow a legal representative of the deceased. The fundamental questions are, therefore, did the administratrix have the right to sue for the alleged injury; and, if so could a second suit be thereafter filed and prosecuted for the same cause while the first suit was pending and undetermined? We contend that the administratrix had the right to sue for the alleged injury, that but one suit therefore was authorized, and that therefore the second suit was improperly instituted and prosecuted, and is not maintainable.

The right to sue for the injury in question is created and controlled by the statute and we need not look beyond that for the correct solution of the questions under consideration. The statute in force at the time of the alleged injury so far as applicable to the points under discussion is as follows: "The action for such damages may be brought in the name of the personal representative of the deceased person, for the benefit of all persons entitled under the law to recover, or by the widow, for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one suit for the same death which shall enure for the benefit of all parties concerned but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit." (Emphasis ours.) Hemingway's Code, sec. 501.

This statute, we respectfully submit, establishes each and every one of our contentions now under discussion. It goes a step farther than any of its predecessors had ever gone. It gives the administratrix, the personal representatives of the deceased person, first and foremost of all other persons, the authority to bring the suit. Then we have the direct and unequivocal statement that, there shall be but one suit for the same death, which shall enure for the benefit of all parties concerned. This is followed by the further direct and unequivocal statement that the party or parties suing, that is, the personal representatives (administratrix) or the legal representative (widow), as the case may be, shall recover such damages as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. So that the administratrix is given the first right to sue and there can be but one suit. The administratrix sued first, and is authorized to recover all damages both to the decedent and to all interested parties. The suit by the administratrix was and is therefore an insuperable barrier to any other suit so long as it is pending and remains undetermined. There is not only no authority of law for the second suit in such case, but it is expressly and imperatively prohibited by the statute. It follows, therefore, that the demurrer to the plea in abatement was improperly sustained.

The question could be safely rested here but the conclusion arrived at may be further fortified by reference to the history and judicial interpretation of the statute under consideration.

The court is directed first to section 193, of the Constitution, and to section 3559 of the Code of 1892, which is a rescript of said section 193, not as involving the particular statute in question, but as having been interpreted in connection therewith. These sections authorize the legal or personal representative of the deceased person to sue. This court held in the Hunter case, 70 Miss. 471, quoting a sentence from the opinion. The primary meaning of the term, legal or personal representative, is the executor or administrator, and there is nothing in the constitution to suggest that they were used in a different sense in the section under consideration. This holding was subsequently overruled by the Bussey (79 Miss. 597) and Washington (45 So. 614) cases, where the court construed the term personal representative as meaning the executor or administrator and the term legal representative as meaning the heir or next of kin. The legislature had in the meantime, however, amended the injury producing death statute from time to time to correct the confusion and uncertainty that had prevailed as to some provisions thereof, and it is interesting to note briefly some of the changes involving the inquiry in hand.

Turning to section 663, Code of 1892, entitled Actions for Injuries Producing Death, and embodying the doctrine of Lord Campbell's act, we find no provision for suit by the personal representative, the executor or administrator and we find no provision to the effect that there shall be but one suit.

Section 663, Code of 1892, was amended by chapter 86, Laws of 1896. This statute for the first time introduces the provision there shall be but one suit for the same death, and provides expressly that executors and administrators shall not sue for damages for injuries causing death, except as below provided. The statute then provides for suit by the personal representative, the executor or administrator where there is no next of kin, as specified in the statute, to bring suit.

This statute was further amended by chapter 65, Laws of 1898, the provisions of which are practically the same as those of the Laws of 1896 as touching the points under discussion. This act also expressly prohibited executors and administrators from suing, except as stated where there was no next of kin. While these statutes were declared unconstitutional on grounds not here involved, they show the development of the rule of law under consideration.

Section 721, Code of 1906, is practically the same as the said Act of 1898, in so far as regards the provisions under consideration. It contained the limit to one suit and prohibited executors and administrators from suing, except in the special cases stated. Chapter 89, Laws of 1908, is practically a rescript of section 721, Code of 1906, the change being to abolish the limitation of time for bringing suit.

It is thus seen that each and every one of the statutes after the Code of 1892, limited the action in such case to one suit only and provided for the recovery in that one suit of all damages both to the decedent and to the interested parties. And the Code of 1892, and each of said amendments thereof up to and including the Laws of 1908, designating who should bring suit, contained the following language introducing the subject; action may be brought in the name of the widow, etc., continuing with the designation of the other next of kin who might bring the suit.

Looking back to the statute first referred to, Laws of 1914, chapter 214, Hemingway's Code, section 501, we find that its opening provision as to who may sue reads: "The action for such damages may be brought in the name of the personal representative of the deceased person, for the benefit of all persons entitled under the law to recover, or by the widow, etc., designating the next of kin who might sue, and as stated, this statute limits to one suit only and authorizes the party suing to recover all damages both to the decedent and to all parties interested. There can be but one suit and this can be brought in one of three ways: Namely, by the executor or administrator, or by one of the designated next of kin, or jointly by all parties interested."

Our contention is made the more manifest by reference to a few of the declarations of this court dealing with the said statute as amended from time to time. The case of Railroad Company v. Hicks, 91 Miss. 273, is referred to in this connection. This suit was for damages for the wrongful death of a servant. Two suits were filed, one by the administratrix, and one by the widow and children of the deceased. The suits were consolidated on the motion of the plaintiffs over defendant's objection. The following excerpts from the opinion of this court in that case are pertinent to the present inquiry: "In other words, it was perfectly competent, under section 193, of the Constitution, and of course, under section 3559, Ann. Code 1892, for the widow and children, that is to say the legal representatives of Hicks to have brought the suit which they did bring here to recover what he was worth to them as a bread winner. It would also have been...