Jacksonville St. Ry. Co. v. Chappell

• Decision Date: 13 December 1886
• Parties: JACKSONVILLE ST. RY. CO. v. GHAPPELL, Adm'x.
• Court: Florida Supreme Court

1 So. 10

22 Fla. 616

JACKSONVILLE ST. RY. CO. v. GHAPPELL, Adm'x.

Florida Supreme Court

December 13, 1886

Appeal from Duval county.

Syllabus by the Court

SYLLABUS

At common law an action in tort to recover damages resulting from personal injuries received by a passenger through the negligence of a common carrier abated on the death of the plaintiff, and could not be revived by his personal representative. Such is the rule under the statute (McClellan, Dig. s 77, p. 830,) declaring what actions die with the person, and what survive.

The test by which a declaration in tort for breach of duty as a public carrier is to be distinguished from one ex contractu for breach of a contract to carry a passenger safely, stated and the declaration under consideration held to belong to the former class. ^[1]

COUNSEL

Fleming & Daniel, for appellant.

Randall Walkers & Foster, for appellee.

OPINION

RANEY J.

At the common law the death of either party to an action abated it and, says Blackstone, (marginal page 302, book 3, vol. 2,) 'in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis maritur cum persona; and it never shall be revived either by or against the executors or other representatives. For,' says he, 'neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury; but in actions arising ex contractu, by breach of promise and the like, * * * the suits * * * may be revived against or by the executors; being, indeed, rather actions against the property than the person, in which the executors have now the same interest that their testator had before.'

Chitty (pages 77, 78, vol. 1) on Pleading, after remarking that actions for the breach of a contract survive, states: 'But in case of torts, when the action must be in form ex delicto, for the recovery of damages, and the plea not guilty, the rule at common law was otherwise; * * * but if the action can be framed in form ex contractu, this rule does not apply. * * * In the case of injuries to the person, whether by assault, battery, false imprisonment, slander, or otherwise, if either the party who received or committed the injury die, no action can be supported either by or against the executors or personal representatives, for the statute of 4 Edw. III. c. 7, has made no change in this respect. * * * At common law, in cases of injury to personal property, if either party died, in general no action could be supported by or against the personal representative where the action must have been in form ex delicto, and the plea not guilty; but if any contract could be implied, as if the wrong-doer converted the property into money, or if the goods remained in specie in the hands of the executor of the wrong-doer, assumpsit might be supported at common law by or against the executors in the former case, and trover against the executors in the latter. The statute of Edward provided for a survival of the action to the executor of the testator whose personal property was carried away or injured and rendered less valuable; and 3 & 4 Wm. IV. c. 42, § 3, gives executors and administrators rights of action for torts to real or personal estate injured, but not for mere injuries to the person.'

STEPHENS, J., in Newsom v. Jackson, 29 Ga. 62, speaking as to what is included under the head of 'Actio Personalis,' says, the most satisfactory explanation is that given by Judge TUCKER, in his commentaries, which is: 'If the cause of action can be maintained in form ex contractu, it survives; but, if it is necessarily in form ex delicto, it dies with the death of either party;' and, an action of deceit, being necessarily in form ex delicto, was held to die with the defendant. See, also, Knox v. City of Sterling, 73 Ill. 215; Toml. Law Dict. tits. 'Action,' 'Executors,' and 'Administrators;'Beckham v. Drake, 8 Mees. & W. 846; Drake v. Beckham, 11 Mees. & W. 315; Chamberlain v. Williamson, 2 Maule & S. 408.

It was observed in Knights v. Quarles, 2 Brod. & B. 102, that if a man contracted for a safe conveyance by a coach, and sustained an injury by a fall by which his means of improving his personal estate were destroyed, and that property in consequence injured, though it was clear he, in his life-time, might, at his election, sue the coach proprietor in contract or in tort, it could not be doubted that his executor might sue in assumpsit for the consequences of the coach proprietor's breach of contract. Raymond v. Fitch, 2 Cromp. M. & R. 588.

It may be regarded as settled that, under the common law, a common carrier can be sued for an injury done to a passenger through its negligence, either in an action of tort (trespass on the case) for a breach of its duty as a public carrier,--such action against a carrier in this case being founded 'upon the custom of the realm, which was but another name for the common law,'--or in an action ex contractu (assumpsit) upon the passenger's contract with the carrier. Hutch. Carr. §§ 738-740; Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537. There are certain characteristics distinguishing these two actions, but the only one material here is that the former action does not survive to the personal representative of the passenger, or against those of the defendant, in case the death of such plaintiff or defendant; but the latter does survive. Hutch. Carr. § 743.

In Huff v. Watkins, 20 S.C. 477, where a plaintiff sued in form ex delicto, and the defendant died before judgment, and it was held that the action could not be revived against the personal representatives of the deceased, it was said that, accepting the propositions made by the plaintiff's counsel to be true, 'it might be enough to say that this action, now proposed to be revived against the executor of Watkins, was brought against the testator in his life-time,--not assumpsit on any supposed promise, express or implied, but clearly ex delicto for a wrong done. The action has already taken form, and we have no authority to change its whole nature in order to revive it against the executor. Upon the face of the record itself, the cause of action arose ex delicto, and, as it seems to us, was buried with the offender.'

In Bank of Orange v. Brown, 3 Wend. 158, after quoting from Lord MANSFIELD as follows: 'But in most, if not all, the cases, where trover lies against the testator, another action might be brought against the executor, which would answer the purpose. An action on the custom of the realm against a common carrier is for a tort and supposed crime. The plea is not guilty. Therefore it will not lie against an executor. But assumpsit, which is another action for the same cause, will lie:'--SAVAGE, C.J., remarks: 'What is here said by Lord MANSFIELD seems to me to show conclusively that there are two remedies against a common carrier, either of which may be pursued,--the one in tort, and the other in assumpsit,--and no intimation is given that the two actions are to be blended or run into each other in any particular.'

If the action presented by the declaration and record before us is an action of tort for the breach of duty as a common carrier, it, at the common law, and independent of our statute declaring what actions shall die with the person, does not survive to the administratrix, the appellee in this court. On the other hand, if it is, in effect, an action of assumpsit upon the carrier's contract with the intestate, it, barring the effect of the statute, does survive to the administratrix.

Whether the action in a particular case is to be regarded as one in assumpsit or in case is sometimes a nice question, but it is to be determined by the same rules as in actions for the loss of goods. Hutch. Carr. § 794. The mere allegation in the declaration of the contract or undertaking to carry the plaintiff as a passenger does not determine that the action is upon the contract, and not for the breach of duty.

'In many cases the contract is stated as the inducement or consideration from which the duty, the breach or neglect of which is complained of, results, and the tort or wrong arising from such breach or neglect of duty is the gravamen of the action. In such cases the action will be treated as in case, and not inassumpsit. * * * When an express or special contract with the carrier is not alleged, nor its breach made the gravamen of the plaintiff's action, it is said the courts will be inclined to treat actions of this kind as founded on the breach of duty; and especially is this true under a system of pleading in which the formal distinctions between actions are abolished, and the declaration merely states the facts which constitute the cause of action.' Hutch. Carr. §§ 794, 795; Heirn v. McCaughan, 32 Miss. 17; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660.

If there is in the declaration an averment of the promise or agreement to carry, and of a consideration for the promise the declaration will be construed as upon the contract, and not for the breach of duty; but the mere allegation of a promise will not give it such...