Mason v. Union Pac. Ry. Co.

• Citation: 7 Utah 77,24 P. 796
• Court: Utah Supreme Court
• Decision Date: 30 August 1890
• Parties: GEORGE S. MASON, APPELLANT, v. UNION PACIFIC RAILWAY COMPANY, RESPONDENT

24 P. 796

7 Utah 77

GEORGE S. MASON, APPELLANT, v. UNION PACIFIC RAILWAY COMPANY, RESPONDENT

Supreme Court of Utah

August 30, 1890

APPEAL from a judgment of dismissal of the district court of the first district. The opinion states the facts.

Affirmed.

Mr Thomas Maloney, for the appellant.

Messrs Williams and VanCott, for the respondent.

ZANE C. J. BLACKBURN, J., concurred. ANDERSON, J. dissenting.

OPINION

ZANE, C. J.:

This suit was commenced by the late George S. Mason to recover damages, as alleged, in consequence of having been forcibly and unlawfully removed from a car of the defendant by its agents; and afterwards, upon motion of plaintiffs' counsel, the name of Jesse G. Mason, administrator of his estate, was substituted with the consent of defendant's counsel. The plaintiff's counsel also moved the court for leave to amend the complaint so as to show that George S. Mason died from the wrongful acts complained of. This motion the court denied, and, on motion of the defendant, dismissed the case. From the order denying leave to amend and dismissing the suit, the plaintiff has appealed to this court, and assigns the same as error.

The question for our consideration and decision is, did the action survive? Section 3187, 2 Comp. Laws Utah 1888, declares that "an action*** does not abate by**** death, if the cause of action*** survive or continue. In case of the death * * * of a party, the court on motion may allow the action * * * to be continued by or against his representatives." While this law makes it the duty of the court to continue actions that survive in the name of the representative of the deceased party, it does not indicate those that do survive. At common law, actions founded in tort, and in form ex delicto, do not survive. Chitty states the rule thus: "In the case of injuries to the person, whether by assault, battery, false imprisonment, slander, or otherwise, if either party who received or committed the injury die, no action can be supported either by or against the executors, or other personal representatives." 1 Chit. Pl. 68. And in Broom's Legal Maxims (page 909) the rule is laid down as follows:

"It is, however, to actions in form ex delicto that the rule actio personalis moritur cum persona is peculiarly applicable; indeed, it has been observed that this maxim is not applied in the old authorities to causes of action on contracts, but to those in tort which are founded on malfeasance or misfeasance to the person or property of another, which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representatives by the statute law, it being a general rule that an action founded in tort, and in form ex delicto, was considered as actio personalis, and within the above maxim."

But the plaintiff's counsel further claims that the action commenced by the late George S. Mason survived, and that the court should have continued it under section 4198 of the above named statute, viz.:

"Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates."

This section relates to the recovery of property, and to actions founded on contracts. It does not embrace those founded on torts against the person. The allegation of the complaint is that the decedent offered to pay his fare to the conductor before he forcibly and wrongfully put decedent of the defendant's train. There was no contract to violate. The trespass complained of was not against or upon personal or real property. The allegations of the complaint showed a trespass against plaintiff's person; no invasion of contract or property rights appeared. Therefore the provisions of the section have no application to this case. The appellant also relies upon the following sections of the above statutes:

Section 2961. "Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would, if the death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."

Section 2962. "That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount received in every such action shall be distributed by direction and decree of the proper probate court to such persons otherwise than creditors, as are by law entitled to distributive shares of the estate of such deceased person, and in such proportions as are prescribed by law."

Section 3179. "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. * * * In every action under this and the preceding section, such damages may be given as, under all the circumstances of the case, may be just."

These sections give to the personal representatives or heirs a right of action against the person whose wrongful act or neglect causes the death of another, when the deceased, if he were living, could maintain one. If the person sustaining the direct injury from the wrongful act or neglect had a right of action for it, his heirs have one for their injury for his death caused by the same act or neglect.

The common law gives a person injured without his fault a right of action to recover compensation from the person whose negligence or wrongful act produced it, and, if death follows from such negligence or wrongful act, the statute gives his heirs a right of action to recover compensation from the same person for the injury in consequence of his death. George S. Mason brought this action in his life-time, to recover damages for the wrong done him by the defendant. That action was to remunerate him for his loss estimated in money; but the action authorized by the statute for the benefit of his heirs would be to recover a sum of money to pay their loss in consequence of his death, the value that his life would have been to them. The object of the latter action would not be to obtain the amount estimated in money that the decedent might have obtained for himself, and remuneration for his physical and mental suffering. The question is, can the action by the heirs be regarded under the law as a continuation of the action of the decedent? The language of the act does not manifest an intention to continue the common law right of action given to recover compensation for the loss to the decedent; but it does manifest an intention to give the heirs in their own name, or in the name of the personal representatives, a right of action to recover compensation for their loss in consequence of the decedent's death. The statute does not continue a right of action given to the decedent in his life-time to compensate his loss in consequence of the defendant's wrongful act against him. It gives the heirs a right of action to remunerate their loss, in consequence of death occasioned by the same act. While the wrongful act of the defendant for the injuries which George S. Mason sued, invaded his rights, and the law gave him a right of action to redress the consequences of that invasion to him, that act did not in a legal sense invade the rights of his heirs, and therefore they had no wrong, from that act simply, to redress by an action. Their legal rights were not invaded until death ensued, and then the statute gave them instantly a right of action to redress the losses following that invasion of their rights. The wife or children do not succeed to the husband's or father's cause of action; that dies with him. But, immediately upon his death, a new cause of action arises in their favor. The statute then gives them a new cause of action. It does not revive or continue the husband's or father's cause of action. Whitford v. Railroad Co., 23 N.Y. 465; Hegerich v. Keddie, 99 N.Y. 258; 1 N.E. 787. The statement that the wrongful act alone constitutes the cause of action, and that the death simply affects the rule of damages, is a mere assumption of the point in dispute--the existence before the death of the right of action in favor of the heirs. The wrongful act constituted a cause of action in favor of George S. Mason, while living, but not in favor of his heirs under the statute. The right of action at common law in favor of the decedent was based on one fact,-- the wrongful act; but the right under the statute in favor of the heir is based on two,--the wrongful act and the death.

Law-writers and courts of very high authority have affirmed that the cause of action under statutes similar to the one applicable in this case consists alone of the negligence or the wrongful act, while others, whose opinions are entitled to great weight, have held that the death constitutes the cause. Both classes appear to concede that the cause must consist of one fact or the other. In our opinion, the true view is that the cause of action consists of both facts; that neither alone amounts to one. If the heirs had brought this suit alleging in the complaint the trespass without the fact of death, the court would have been compelled to sustain a demurrer to the complaint, on the ground that it did not state facts sufficient to...