Melzner v. Northern P. Ry. Co.
| Decision Date | 03 October 1912 |
| Citation | 127 P. 146,46 Mont. 162 |
| Parties | MELZNER v. NORTHERN PAC. RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by A. B. Melzner, administrator of Omer Haddox, deceased against the Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed.
Gunn & Rasch, of Helena, for appellants.
Maury Templeman & Davies, of Butte, for respondent.
This action was brought by A. B. Melzner, as administrator of the estate of Omer Haddox, deceased, to recover damages for personal injuries which resulted in death. On January 20 1909, at Whitehall, Mont., Omer Haddox, a minor about 14 years of age, was struck by a locomotive driven by the defendant Barry and operated by the defendant railway company. The injury resulted in the death of the boy. The complaint is drawn upon the theory that, after Engineer Barry discovered the peril in which the boy was situated, he still had a last clear chance to avoid injuring him, but failed to exercise ordinary care. The trial resulted in a verdict and judgment in favor of plaintiff, and from that judgment and an order denying them a new trial the defendants have appealed.
1. It is insisted that the complaint does not state a cause of action, and the familiar rule announced by this court in Martin v. City of Butte, 34 Mont. 281, 86 P. 264, is invoked. In that case we said: It is urged that the rule is peculiarly applicable in the present instance, because this action is sought to be prosecuted by the administrator of the estate of the deceased minor. Appellants insist that any action which might be maintained must be brought by the parent or guardian of the minor, under section 6485 of the Revised Codes, which provides: "A father, or in case of his death, or desertion of his family, the mother may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. * * *" Assuming, as we may, that, in so far as section 6485 refers to actions for damages for injuries to minors which do not result in death, it does not create any new right of action, but only gives recognition to the right of action existing at common law, and that, so far as it deals with actions for damages for the death of minors, it creates new rights of action which were unknown to the common law, and follows, in substance, if not in form, the English statute known as Lord Campbell's Act, we may consider the rights mentioned so far as they are involved here.
It is very clear that whether the parent prosecutes the common law or statutory action his right is one personal to him, the purpose of which is to enable him to recover damages by way of compensation for the loss of the minor's services to which, as parent, he would be entitled until the boy reached majority, or, possibly, until he was emancipated. Durkee v. Central P. R. R. Co., 56 Cal. 388, 38 Am. Rep. 59; Hedrick v. Ilwaca R. & N. Co., 4 Wash. 400, 30 P. 714. But, whatever right of action the parent has, it is altogether different from the right which is sought to be enforced in this instance, and therefore the provisions of section 6485 which deal with the parent's right are not applicable here, and need not be considered further. It is also equally plain that the provisions of section 6485 which refer to the right of a guardian to sue for damages for the death of his ward have no application, for this action is not of that character. In their reply brief counsel for appellants properly characterize this action now before us, as " 'the common-law action which he (the minor) had for the injuries which he received, and which accrued to him at the time of his injuries, and remained available to him until the instant of his death' (and), which the plaintiff, as the administrator of the deceased minor, now seeks to prosecute," etc. Johnson v. Butte & Sup. Copper Co., 41 Mont. 158, 108 P. 1057. Our inquiry concerning the meaning to be given to section 6485 is limited to the provision with reference to the right of the guardian to maintain an action for injury to his ward.
If this action was one for damages for injuries which the minor survived, no difficulty would be encountered; for at common law the infant plaintiff sued by guardian ad litem, while under our statutes he appears by his general guardian or his guardian ad litem. Rev. Codes, §§ 3599, 6481; Flaherty v. Butte El. Ry. Co., 40 Mont. 454, 107 P. 416, 135 Am. St. Rep. 630. The fact that this action is brought to recover damages for injuries which resulted in the death of the minor, and that the action was not commenced until after the minor's death, presents the difficulties which confront us. Counsel for appellants insist that in an action of this character the provisions of section 6485 are controlling, and the action must be prosecuted by the guardian, the only logical conclusion from which is that, if at the time of his death the minor did not have a guardian, the action cannot be maintained at all, and Bond v. United Railroads, 159 Cal. 270, 113 P. 366, Ann. Cas. 1912C, 50, is cited as apparently approving such a conclusion. However, an examination of the case just cited discloses that the only controverted question before the California court for decision related to the measure of damages in an action by a mother for the death of her son, and that the observation upon section 376 of the California Code of Civil Procedure was pure dictum. In the elaborate briefs submitted by counsel not a case is called to our attention which determines the question now under consideration, and we doubt whether a case of that character can be found. California, Indiana, Washington, and probably other states have statutes identical with, or similar to, our section 6485 above, but apparently the particular question now raised by appellants has not been considered or determined.
We preface our remarks by saying that we think the evidence sufficient to show that Omer Haddox survived his injuries for an appreciable length of time, and therefore he had a cause of action for damages for the injuries sustained, assuming for the present that his injuries were caused proximately by the negligence of the defendants. Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 P. 960; Kellow v. Central Iowa Ry. Co., 68 Iowa, 470, 23 N.W. 740, 27 N.W. 466, 56 Am. Rep. 858. If there is any right of action disclosed by this complaint, it is the identical right which Omer Haddox had at the time of his death, but to enforce which no action had been commenced during his lifetime.
At common law such a right of action literally died with the decease of the injured party (Dillon v. Great Northern Ry Co., above), and could not thereafter be revived or prosecuted by any one. That rule is in force in this state to-day, unless it has been abrogated by statute. It is clear that the rule was not affected by section 6485. That section is not in any sense a survival statute, and cannot be appealed to by any one as authority to maintain an action of this character. But section 6494, Revised Codes, provides that an action or cause of action shall not abate by the death of a party, but shall in all cases where a cause of action arose in favor of such party prior to his death survive and be maintained by his representatives, and, in case such action has not been begun, it may be begun in the name of his representative; and, in case the action was begun prior to his death, the court on motion will permit his representative to be substituted and the action to proceed in his name. But it is most earnestly urged that this section does not effect a survival of an action for personal injury; that it applies only to causes of action which survived at common law, and many cases are cited in support of this contention. Slauson v. Schwabacher, 4 Wash. 783, 31 P. 329, 31 Am. St. Rep. 948, involved only the question of the assignability of a claim for damages. In Jones v. Miller, 35 Wash. 499, 77 P. 811, the court had under consideration section 5695, Ballinger's Annotated Codes, which provides: "All other causes of action by one person against another, whether arising on contract or otherwise, survive to the personal representatives." Standing alone, the meaning of that section would be difficult to determine; but when it is read in connection with section 703, Hill's Code of Washington a section which immediately preceded it in the original act, other sections of the Washington Code and the history of the legislation in that state upon the subject, beginning with the act of 1869, it becomes apparent that section 5695 does not include actions for purely personal torts. Section 5695 deals with actions by or against administrators and executors; but in the same Code of Washington, in treating of parties to civil actions, is found section 193, which provides that "no action shall abate by death of the party, if the cause of action survive or continue." Construing these several statutes together in the light of their history, and the correctness of the Washington court's conclusion is manifest at once. In Ex parte Schreiber, 110 U.S. 76, 3 S.Ct. 423, 28 L.Ed. 65, the question presented was whether an action for penalties and forfeitures under the copyright law survives by virtue of section 955, United States Revised Statutes (U. S. Comp. St. 19...
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