De Moss, State ex rel., v. District Court of the Sixth Judicial Dist.

• Decision Date: 13 February 1951
• Docket Number: No. 5347,5347
• Citation: 1951 NMSC 10,55 N.M. 135,227 P.2d 937
• Parties: . Supreme Court of New Mexico
• Court: New Mexico Supreme Court

Page 937

227 P.2d 937

55 N.M. 135

STATE ex rel. DE MOSS v. DISTRICT COURT OF THE SIXTH JUDICIAL DIST.

No. 5347.

Supreme Court of New Mexico.

Feb. 13, 1951.

H. Vearle Payne, Lordsburg, Hodges & Hodges, Silver City, for relator.

J. R. Wrinkle, Silver City, Bert Newland, Deming, for respondent.

McGHEE, Justice.

The relator seeks to prohibit the trial of a case pending in the District Court of Grant county filed October 17, 1949, entitled 'Lettie Mae Mathis, administratrix of the estate of James B. Mathis, Sr., versus E. C. DeMoss,' wherein damages are sought on account of the claimed negligence of DeMoss in performing surgery on James B. Mathis, Sr., on October 7, 1948, which it is claimed caused his death on October 18, 1948.

The administratrix was appointed by the District Court of Grant county on February 28, 1949, following the filing of a petition in that court asking such action.

The relator sets up two grounds for the issuance of the writ. First, that the District Court was without jurisdiction to appoint an administratrix in an action originally filed in that court; and, second, that the right to maintain the action is barred because suit was not brought within one year after the commission of the claimed tort.

As an administrator appointed for the purpose of bringing action under the wrongful death statute, Sec. 24-101, 1941 Compilation, is a mere statutory trustee for the purpose of prosecuting the action for the benefit of the persons entitled to the recovery and disbursing it to the persons entitled to receive it, Henkel v. Hood, 49 N.M. 45, 156 P.2d 790, and has nothing to do with the probating of the estate, and the further fact that the second ground is decisive of the case, we do not deem this a proper one in which to determine the constitutionality of Sec. 16-312, 1941 Compilation, which declares the District Court shall have original, concurrent probate jurisdiction with the Probate Court. State ex rel. Sanchez v. Stapleton, 48 N.M. 463, 152 P.2d 877.

The action was filed below under Sec. 24-101, 1941 Compilation, which reads as follows: 'Whenever the death of a person shall be caused by the wrongul act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if 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 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.'

The relator contends this is a survival statute and the plaintiff below under Sec. 24-102, 1941 Compilation, had only one year from the time of the alleged tort in which to file suit; while the respondent contends that on the death of Mathis a new cause of action arose on behalf of the beneficiaries, and limitation only ran against them from the date of his death.

Our wrongful death statute was taken from Missouri, and at the time of its adoption the Supreme Court of that state held it was a survival statute, and a new cause of action in favor of the beneficiaries did not arise on the death of the injured party. We had the question before us in Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, where the Missouri cases on the subject before and for some time after our adoption of the statute were discussed. We followed the Missouri cases and held Sec. 24-101, supra, was a survival statute.

The respondent calls our attention to the statement of Mr. Justice Bickley in his specially concurring opinion in the Henkel case, supra, as follows: 'This cause of action arose upon the death of the deceased July 28, 1942; * * *.' [49 N.M. 45, 156 P.2d 795.] An examination of the record in that case discloses the fact that the deceased was instantly killed, so there was no occasion for distinguishing between the time of the injury and of death as applied to the time for bringing suit. The quoted language, therefore, does not assist us in determining the question now under consideration.

The respondent also argues with considerable force that as the Supreme Court of Missouri has since overruled its former decisions and now holds the statute creates a new cause of action in favor of the beneficiaries on the death of the injured party, as evidenced by the case of Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, decided November 29, 1933, we should now overrule the Hogsett case. Our decision in that case was three years after the Cummins case, supra, and we there followed the Missouri cases decided prior to our adoption of their statute. We feel any change in the rule should be made by the legislature and not by us. It is clear that not only the remedy but the right to maintain the suit was...