Killian v. Southern Ry. Co

• Decision Date: 14 May 1901
• Citation: Killian v. Southern Ry. Co, 38 S.E. 873, 128 N.C. 261 (N.C. 1901)
• Court: North Carolina Supreme Court
• Parties: KILLIAN . v. SOUTHERN RY. CO.

38 S.E. 873

128 N.C. 261

KILLIAN .

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

May 14, 1901.

WRONGFUL DEATH—ACTION BY PARENT.

A father caunot maintain an action in his individual capacity for the negligent killing of his son, either at common law, or under Code, §§ 1498, 1499. which give a right of action for wrongful killing, but only authorize such action to be maintained by the executor, administrator, or collector of deceased.

Appeal from superior court, Catawba county; Councill, Judge.

Action by H. C. Killian against the Southern Railway Company for the wrongful killing of plaintiff's son. From a judgment of nonsuit, plaintiff appeals. Affirmed.

E. B. Cllne and T. M. Hufham, for appellant.

Geo. F. Bason, for appellee.

CLARK, J. This is an action by a father for the negligent killing of his son. Upon the evidence the plaintiff was nonsuited, and appealed; but in this court the defendant interposed a preliminary plea, ore tenus, to dismiss the action because the complaint does not state facts sufficient to constitute a cause of action. Rule 27 of this court (27 S. E. viii.); Manning v. Railroad Co., 122 N. C. 825, 28 S. E. 963. The Code (section 1498) provides that whenever "the death of a person is caused by a wrongful act, neglect, or default of another, " an action therefor may be brought by "the executor, administrator or collector of the decedent." Section 1499 provides that "the plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death, " and section 1500 provides for the application and distribution of such recovery. At common law, this action could not have been maintained. Baker v. Bolton, 1 Camp. 493, in which Lord Ellenborough tersely stated the doctrine of the common law to be, "In a civil suit, the death of a human being cannot be complained of as an injury." Where the injury subsequently resulted in death the action abated, —"Actio personalis moritur cum persona." Hence, though many courts doubted the soundness of the reasoning as applied to this class of cases, it was uniformly held in England and this country that the right of action ceased upon the death of the injured party. 8 Am. & Eng. Enc. Law (2d Ed.) 855, and a page of authorities there cited, — especially Carey v. Railroad Co., 55 Mass 475, 48 Am. Dec. 610; Eden v. Railroad Co., 53 Ky. 204; Hyatt v. Adams, 16 Mich. 180. In Insurance Co. v. Brame, 95 U. S., at page 756, 24 L. Ed. 582, it is said: "The authorities are so numerous and so uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. It has been decided in many cases in the English courts and in many of the state courts, and no deliberate, well-considered decision to the contrary is to be found." It is true, the father was entitled to the services of his son, if he had lived, till his majority, but when the death of the son ensued the cause of action abated. It is said in Hyatt v. Adams, 16 Mich. 180, upon a review of the English authorities (Cooley, J., concurring), that one case, and only one (Baker v. Bolton, supra), held that at common law the father could recover, after the death of the child, even for the value of his services from the time of the injury up to the date of the death; but, as here the death was instantaneous, that case does not apply. In England this rule of the common law was changed by Lord Campbell's act (9 & 10 Vict.), which gave the right of action for injuries sustained by neglect or wrongful act of another, notwithstanding the death of the person injured. That act began by expressly reciting that at common law an action could not be maintained in such cases. This act has been copied, with many variations, in the states of the Union, but in nearly every instance such acts give the right of action to the personal...