Moon v. Bullock
| Decision Date | 23 June 1944 |
| Docket Number | 7157 |
| Citation | 65 Idaho 594,151 P.2d 765 |
| Parties | BENJAMIN B. MOON, Appellant, v. AMELIA JANE BULLOCK and AMELIA JANE BULLOCK, Executrix of the Estate of Arthur T. Bullock, deceased, Respondents. BLANCHE MOON and NORMA JOYCE MOON, an infant, by her guardian ad litem, Blanche Moon, Appellants, v. AMELIA JANE BULLOCK and AMELIA JANE BULLOCK, Executrix of the Estate of Arthur T. Bullock, deceased, Respondents |
| Court | Idaho Supreme Court |
Rehearing Denied October 3, 1944.
1. Abatement and revival
Under common law, death of either party to civil action causes abatement thereof, and action cannot be continued by substitution of decedent's representative, but can be revived only by bringing new action, if cause of action survives.
2. Abatement and revival
The statute providing that action does not abate on party's death, if cause of action survives or continues, and that court, on motion, may allow continuance of action by or against deceased party's representative, is not a general survival statute, but recognizes general common-law rule that certain actions and causes of action die irretrievably with a party's death. (I.C.A., sec. 5-319.)
3. Abatement and revival
At common law, actions for injuries of personal nature, such as injury to person, malicious prosecution, false imprisonment libel, slander, etc., generally do not survive death of a party thereto, but cause of action for injury which lessens injured party's estate survives his death and is assignable.
4. Constitutional law
The common-law rule that there is no remedy for injury to person after tort-feasor's death is not inconsistent with constitu- tional provision requiring courts to afford remedy for every injury of person, in view of constitutional provision prohibiting any one of three departments of government from exercising powers of either of the others and statute authorizing action for wrongful death against person causing death. (I.C.A., sec. 5-311, 5-319 70-102, 70-113, 70-116; Const., art. 1, sec. 18; art. 2, sec 1; art. 21, sec. 2.)
5. Abatement and revival
A cause of action for personal injuries expires on injured person's death from other causes than injuries inflicted by tort-feasor.
6. Constitutional law
Denial of executrix's right to recover damages for injuries causing testator's death from deceased tort-feasor's estate does not deny her "equal protection of law," as right of action for such injuries is not given to estate of victim of tort, but only to his heirs, and then only if cause of death was tort-feasor's wrongful act. (I.C.A sec. 5-311.)
7. Constitutional law
The declaration in bill of rights that courts shall afford remedy for every injury of person, property or character does not of itself change existing law, nor empower courts to legislate or to amend, modify or repeal laws to meet their ideas of what is "natural justice." (Const., art. 1, sec. 18.)
8. Common law
The common law, unless altered by statute, is as much part of local jurisprudence as Legislature's enactments, and a principle of such law, which has entered into state's form of government, is controlling until express legislation modifies it or negatives it by substitution of new declaration on subject.
9. Common law
Legislative adoption is unnecessary to affirm existence of common law, but statutory enactment is essential to repeal, abrogate or change common-law rules or doctrine.
10. Common law
Common-law rules cannot be changed by legislation of doubtful implication, but obvious legislative implication of such change cannot be ignored.
11. Statutes
A statute must not be construed as altering common law further than its words and circumstances import.
12. Constitutional law
It is Legislature's, not court's, province to modify common-law rules, and court has no more right to abrogate common law than to repeal statutory law.
13. Constitutional law
Courts may extend old legal principles to new conditions, determine new or novel questions by analogy, and even develop and announce new principles necessitated by changes wrought by time and circumstances, but cannot legislate nor abrogate, modify, repeal or amend rules long established and recognized as part of the law of the land.
14. Abatement and revival
Causes of action purely in tort, as for personal injuries, with certain exceptions, abate with tort-feasor's deaths. (I.C.A., secs. 5-310, 5-311, 5-319, 15-805.)
15. Abatement and revival
Under statute authorizing any person or his personal representatives to maintain action against representative of decedent, who in his lifetime wasted, destroyed, took, carried away or converted to his own use, such person's goods or chattels, cause of action for loss of or destruction of items of personal property as result of collision between automobiles driven by plaintiff and another survived such other's death as result of collision. (I.C.A., sec. 15-805.)
16. Abatement and revival
The statute authorizing any person or his personal representative to maintain action against representative of decedent who, in his lifetime, wasted, destroyed, took, carried away or converted to his own use such person's goods or chattels, modified common-law rule to such extent as to give person whose personal property is wrongfully destroyed to his damage a cause of action therefor against personal representatives of deceased wrongdoer, though wrongdoer did not benefit by wrongful act. (I.C.A., sec. 15-805.)
17. Abatement and revival
Under statute providing that any person or his personal representative may maintain action against representative of decedent who in his lifetime wasted, destroyed, took, carried away or converted such person's goods or chattels, an action for destruction of personal property because of tort-feasor's negligence survives his death, though it would not have survived at common law, and action may be maintained against deceased tort-feasor's legal representatives. (I.C.A., sec. 15-805.)
Rehearing Denied October 3, 1944.
Appeal from the District Court of the Third Judicial District, in and for Ada County. Hon. Chas. F. Koelsch, Judge.
Action by appellant, Benjamin B. Moon, against respondent, personally, and as executrix of the estate of Arthur T. Bullock, deceased, to recover damages for loss of or destruction of certain items of personal property; damages for personal injuries, including pain, suffering and permanent injuries; damages for loss of time from employment resulting from said injuries; and damages for hospital and nurses' expenses necessarily incurred as the result of alleged accident. Demurrer sustained to amended complaint. Judgment entered. Plaintiff appealed. Affirmed in part, reversed in part, and remanded.
Vernon K. Smith and Walter Oros for appellants.
The particular question of survivability of personal injury actions against a deceased tort feasor has not been presented in our supreme court, the question has been presented to the supreme courts of other jurisdictions. In the State of Florida, in the case of Waller v. First Savings and Trust Company, 138 So. 780, 1931, practically the same case was presented to the Florida supreme court under constitutional provisions similar to our own, and therein the court decided in favor of the contention urged by the plaintiff herein.
Our constitutional provision, Article I, Sec. 18, is practially identical to the Florida Constitution, and our Supreme Court has declared time and time again that damages for personal injuries are compensatory and not punitive. ( Maloney v. Winston Brothers, 18 Ida. 74; Denbeigh v. Oregon Washington Ry. Co., 23 Ida. 63.)
The next jurisdiction wherein the question of survivability of tort actions was considered under a constitutional provision similar to our own Sec. 18, Art. I, Constitution, and Sec. 4, Florida Declaration of Rights, is Nebraska in the case of Wilfong v. Omaha and Council Bluffs St. Ry. Co., 262 N.W. 537.)
Frank Estabrook, Richards & Haga, J. L. Eberle and B. S. Varian for respondents.
A cause of action for wrongful death does not survive the death of a wrongdoer, nor does any cause of action in the nature of a tort survive excepting in the case of a recuperatory action to enforce a duty to restore an unjust enrichment; which common law rule has not been abrogated by any statutory provision in this state and is not inconsistent with or repugnant to any constitutional or statutory provisions and has been confirmed by this Court as the law in this state. ( Kloepfer v. Forch, 32 Ida. 415, 184 P. 477; MacLeod v. Stelle, 43 Ida. 64, 249 P. 254; Whitley v. Spokane & Inland Ry. Co., 23 Ida. 642, 132 P. 121; Helgeson v. Powell, 54 Ida. 667, 34 P.2d 957; Sec. 5-319, I. C. A.)
The community property law of Idaho, a common law body, derives its essence and spirit from the common law, and is largely sui generis; and upon marriage a new entity or partnership is not created but the "community" is simply a form of property ownership, a manner of holding property, and under the law of Idaho, a widow who had no part in an alleged tort cannot be made liable for damages alleged to have been caused by the negligence of her deceased husband because of any interest in the community property left by such deceased husband. (Francis W. Jacob's Law of Community Property in Idaho, reprinted by the Idaho State Bar in 1943, pp. 15, 27, 98, 100; Gustin v. Byam, 41 Ida. 538, at 545, 240 P. 600; Holt v. Empey, 32 Ida. 106, 178 P. 703; Sec. 8-203, I. C. A.; III Vernier, American Family Laws, (1935), pp. 223, 224; McKay in Community Property, (2d Ed.) Secs. 815-827, Chap. 73, 31 C. J., Sec. 1069.)
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