James v. Christy

• Court: Missouri Supreme Court
• Writing for the Court: SCOTT
• Citation: James v. Christy, 18 Mo. 162 (Mo. 1853)
• Decision Date: 31 March 1853
• Parties: JAMES, Appellant, v. CHRISTY, et al., Respondents.

18 Mo. 162

JAMES, Appellant,

v.CHRISTY, et al., Respondents.

Supreme Court of Missouri.

March Term, 1853.

1. An action by a parent for damages for the loss of his son, who was killed by the negligence of the defendant, a common carrier, does not abate by the death of the plaintiff, but survives to his personal representatives; but the actual damages from the loss of the son's services alone survive.

Appeal from St. Louis Court of Common Pleas

Todd & Krum, for appellant.

I. An action for the causes set forth in the plaintiff's petition can be maintained. (20 Wend. 210; 3 Comstock. 489.)

II. If the action, as stated in the plaintiff's petition, can be maintained, then it survives to the administrator. The personal representative of the plaintiff can maintain an action for the loss of the services of the plaintiff's son, caused by the gross carelessness and fault of defendants. This is the test in determining whether a cause of action survives. (R. C. 76, art. 2, sec. 25; Acts 1849, art. 3, § 9; 4 Howard's Prac. (N. Y.) 358; Gould's Pl. 268, § 95, note 11.)

III. But, it is insisted on the other side, that the word “rights,” used in the twenty-fifth section of article two, concerning administration, must be restricted to a right in tangible property. This construction of the language of that section, it is submitted, is to narrow and not justified either by the context or spirit of the statute. The language is broad enough to embrace any right, of whatever nature, for a wrong to which an action might be maintained against the wrong doer.R. M. Field, and E. & B. Bates, for respondents.

This case turns on the twenty-fifth and twenty-sixth sections of the second article of the Revised Code, tit. “Administration.” The word “rights,” occuring in that section, is obviously intended to apply to rights of property only, or what is technically termed rights of things, as distinguished from mere personal rights. Such was the construction of this court in the case of Higgins v. Breen, Administrator of McNally, where it is said that “this act seems to include, by express enactment, the injuries which were comprehended in the English act of 4 Edward III., by construction.” (9 Mo. 497.) Numerous authorities might be cited to show that actions like the present abate by the death of the party. (Chamberlain v. Wilson, 2 Mo. 409; 1 Pick. 71; 13 S. & R. 183; 5 Pick. 257; 6 Greenl. 470; Clarke v. McClelland, 9 Barr, 128; Penn. Stat. in Dunlap, p. 589, §§ 26, 27, 28; 4 Hawks, 133; Fairley v. Davis, 6 Ala. 375; Reed v. Hatch, 19 Pick. 47.)

The twenty-sixth section of the second article of the administration law except from the provisions of the preceding section, actions for “injuries to the person of the intestate.” The action complained of is a relative injury to the person of the intestate, James. (3 Black. Com. 142; 1 Bouvier's Law Dic. 693, tit. “Injuries.”)

SCOTT, Judge, delivered the opinion of the court.

The plaintiff brought an action against the defendants, as common carriers for hire, being the owners of a steam ferry boat used in crossing the Mississippi river from St. Louis to Illinois. It is alleged that, by reason of the imperfection of the machinery of the boat, which was known to the defendants, and their negligence and carelessness, an explosion occurred which caused the death of a son of the plaintiff whilst he was a passenger on the boat, crossing the river. The son was living with his father, and was fifteen years of age. After the beginning of the suit, the plaintiff died, and his administrator, entering his appearance, on motion, the suit was abated. The question is whether the action survived to the administrator of...