Mast v. Sapp

• Decision Date: 13 March 1906
• Citation: 53 S.E. 350,140 N.C. 533
• Parties: MAST v. SAPP.
• Court: North Carolina Supreme Court

53 S.E. 350

140 N.C. 533

MAST v. SAPP.

Supreme Court of North Carolina

March 13, 1906

Appeal from Superior Court, Forsyth County; Cooke, Judge.

Action by D. P. Mast, guardian, etc., against H. O. Sapp, as administrator of the estate of Angeline Peoples, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

Clark C.J., dissenting.

A city maintained a water reservoir near the house of P. The reservoir suddenly broke, and either fell, or by the weight and force of the water was driven, against the house crushing it and killing P., who, with her husband and son by a former marriage and stepson, lived therein. All were rescued, except P., who was found in the débris seated in a chair apparently dead. Held, that whether the cause of action for injuries to and destruction of the house survived to P.'s administrator or to her heirs depended, not on whether she survived the destruction of the house, but on whether the injury was committed before or after her death.

This action was brought to determine the right, as between the parties, to a fund of $865, now in the hands of the defendant, by agreement, as stakeholder. The controversy arose on the following facts: Angeline Peoples was the owner of a house standing on her lot immediately north of and 12 feet from a reservoir belonging to, and used as a place of storage for water by, the city of Winston. On the 2d day of November, 1904, the wall of the reservoir, which was 20 feet higher than the house, by reason of some negligent defect in its construction or its condition, gave way, and either fell or by the weight and force of the water was driven, against the house, crushing it and killing the said Angeline Peoples who with her husband, a son by a former marriage, and a stepson, lived in it. The city paid the sum of $4,500 to the administrator of Angeline Peoples for negligently killing her, and also paid to him the said sum of $865, the value of the property destroyed, the latter sum to be held subject to the determination by the court of the proper and rightful claimant thereto. The court submitted to the jury the following issue: "Did the intestate of the defendant survive the destruction of the property described in the pleadings?" Which the jury answered in the negative. The defendant's right to the fund was made to turn upon the survival by Angeline Peoples of the destruction of the property. The testimony, which was that of her neighbors tended to show that within a very short time after they heard a roaring sound, they went out and discovered that the reservoir had burst, the water had spread over the ground and had rushed into some of the houses. The house of Angeline Peoples had then been crushed as if by the first impact of the wall and the water. They rescued Fred Burkhart, son of Angeline Peoples, and Walter Peoples, her stepson, and Mr. Peoples, all in the order mentioned, who were more or less injured. They then searched for Mrs. Peoples, and found her under the débris, consisting of timbers, brick, and mortar, and seated in a chair. She was bleeding at the mouth and nose, and apparently dead, "as they discovered no signs of life." The brick found on her seemed to have fallen from the chimney. It was about half an hour after they heard the crash before they found Mrs. Peoples. The house had two rooms, and Mr. and Mrs. Peoples and her son slept in the room at the north end of the house--that is, the one farthest from the reservoir--and at the north end of that room.

At the request of the defendant, the court gave the following instructions: ""(1) When the matter at issue is as to whether a person shown or admitted to be living just before, or a short time before, the happening of a certain event, continued to live until after the event happened, the presumption is that the person did continue to live until after the happening of the event, and the burden is upon the party who asserts the contrary to show that the death occurred prior to or instantaneously with the happening of the event." "(3) If the death of Mrs. Peoples did not occur until after the destruction of the property, though but a moment after, then Mrs. Peoples survived the destruction of the property. (4) The burden is on the plaintiff to show that the death of Mrs. Peoples occurred before or instantaneously with the injury to the real estate; or, in other words, that she did not survive the destruction of the property." "(6) If the death of Mrs. Peoples did not occur until after the destruction of the property, though but a moment after, then Mrs. Peoples survived the destruction of the property, and the jury will answer the issue "Yes." D' And the court refused to give the following: "(2) There is no evidence to show that the death of Mrs. Peoples took place before the injury occurred to the real estate, and therefore the jury must answer the issue 'Yes." D' "(5) There is no evidence to show that the death of Mrs. Peoples took place before or at the moment when the injury to the real estate occurred." The defendant excepted to the refusal to give instructions numbered 2 and 5. The court then charged the jury as follows: "If the jury should find from the evidence that the falling of the house crushed the life out of Angeline Peoples, then she did not survive the destruction of the house, and they should answer the issue "No,' but if they should find that she was wounded by the falling of the house and afterwards died from her wounds, or that she was caught in the ruins and afterwards died from suffocation, then she did survive the destruction of the house, and the jury should answer the issue 'Yes." D' The defendant excepted. Verdict and judgment for plaintiff. Defendant appealed.

Lindsay Patterson, H. R. Starbuck, and F. T. Baldwin, for appellant.

Watson, Buxton & Watson and E. A. Griffith, for appellee.

WALKER, J. (after stating the facts).

The rule of the common law is that a personal right of action dies with the person, but great changes in this respect have been wrought by legislation and the decisions of the courts, and the maxim has thereby lost much of its vitality. As to pure torts, it still retains its ancient force and vigor--that is, as to those torts committed to one's person, feelings, or reputation--but it does not now apply to torts committed to the property, personal or real. As to the first kind of property, it was repealed by St. 4 Edw. III, c. 7, and as to the second, by St. 3 & 4 Wm. IV, c. 42. These provisions have been substantially adopted by our Legislature, and will be found in the several compilations of our statutes. Rev. St. c. 46, § 37; Rev. Code, c. 46, § 43; Code, § § 1490, 1491, and 1497; Broom's Legal Maxims (8th Am. Ed.) 904 et seq.; Howcott's Ex'rs v. Warren, 29 N.C. 20; Rippey v. Miller, 33 N.C. 247; Butner v. Keelhn, 51 N.C. 60; Schouler on Executors, § § 279, 373. But for this radical change in the law, neither the plaintiff nor the defendant would be entitled to the fund in controversy. One of them must have it, and which of the two is entitled to the favorable judgment of the court, under the law, is the question before us and is one not entirely free from difficulty. "A right to recover recompense for damages [to land] sustained is a chose in action, which, if permitted to survive the person damaged, survives to his executor or administrator. The heir or devisee has no interest in or claim to it, and cannot, therefore, either originally prosecute a suit for it or revive one that has been instituted in the lifetime of the person injured." Dobbs v. Gullidge, 20 N.C. 197. But this presupposes, of course, that the cause of action accrued in the lifetime of the testator or intestate; or, in other words, that the injury was committed during that time. If it was committed after his death, the right of action would belong to the heir or devisee.

We must therefore inquire in such a case when, in contemplation of law, the injury was done. Where there is a breach of an agreement or the invasion of a right, the law infers some damage. Bond v. Hilton, 47 N.C. 149; 1 Sedgwick on Damages (8th Ed.) § 98. The losses thereafter resulting from the injury, at least where they flow from it proximately and in continuous sequence, are considered in aggravation of damages. Hale on Damages, § 32; Brown v. Manter, 2 Fost. (N. H.) 468. The accrual of the cause of action must therefore, be reckoned from the time when the first injury was sustained. This has been expressly decided in this court. Ridley v. Railroad, 118 N.C. 996, 24 S.E. 730, 32 L. R. A. 708; Parker v. Railroad, 119 N.C. 685, 25 S.E. 722. "When an injury is permanent, it is what is spoken of in the books as 'original' (that is, as accruing wholly when the wrongful act was done), and is distinguished from an act which is to be regarded as continuing (that is, an injury that could and should be terminated), and is to be compensated for strictly with reference to the past and upon the theory that it would be terminated." Bizer v. Railroad, 70 Iowa, 147, 30 N.W. 172. This case is cited with approval, and the language above quoted adopted in Ridley v. Railroad, supra. An injury committed is, then, a permanent one, in the sense above explained, when it is done at once by the unlawful act or the negligent omission from which the loss results without any repetition of the act; there being only one act and one damage, though the latter may be composed of several items or consist, for example, in the destruction of several different pieces of property. The wrong produces one continuous train of consequences. The loss is all traceable back to the single origin, and in that case the law awards damages once for all. Ridley v. Railroad, supra; Beach v. Railroad, 120 N.C. 498, 26 S.E. 703. "The right to recover...