Mull v. Wienbarg

• Decision Date: 13 December 1949
• Docket Number: 2438
• Citation: 212 P.2d 380,66 Wyo. 410
• Parties: CLIFFORD LEWIS MULL and ROBERT B. LAUGHLIN, as Administrator of the Estate of MARTHA L. MULL, Deceased, Plaintiffs and Appellants, v. JACK L. WIENBARG, as Administrator of the Estate of GEORGE L. WIENBARG, Deceased, and JACK L. WIENBARG, as Administrator of the Estate of IRMA LOUISE WIENBARG, Deceased, Defendants and Respondents
• Court: Wyoming Supreme Court

212 P.2d 380

66 Wyo. 410

CLIFFORD LEWIS MULL and ROBERT B. LAUGHLIN, as Administrator of the Estate of MARTHA L. MULL, Deceased, Plaintiffs and Appellants, v. JACK L. WIENBARG, as Administrator of the Estate of GEORGE L. WIENBARG, Deceased, and JACK L. WIENBARG, as Administrator of the Estate of IRMA LOUISE WIENBARG, Deceased, Defendants and Respondents

No. 2438

Supreme Court of Wyoming

December 13, 1949

Action by Clifford Lewis Mull and Robert B. Laughlin, as administrator of the estate of Martha L. Mull, deceased against Jack L. Wienbarg, as administrator of the estate of George L. Wienbarg, deceased, and another, for damages for the alleged negligence of defendant's intestates in the operation of an automobile which caused injury to the first plaintiff and death of the second's intestate.

The District Court for Laramie County, SAM M. THOMPSON, J rendered a judgment in favor of defendants, and plaintiffs appealed.

Affirmed.

The Supreme Court, BLUME, J., held that causes of action for personal injury and death did not survive death of alleged tortfeasors, and affirmed the judgment.

Judgment affirmed.

For the plaintiffs and appellants the cause was submitted upon the brief of Ewing T. Kerr and Kline & Kline all of Cheyenne Wyoming, and oral argument of Mr. Arthur Kline.

POINTS OF COUNSEL FOR APPELLANTS.

The common law doctrine that actions for personal injuries die with the person (actio personalis moritur cum persona) never became a part of the Wyoming law for the reason that this doctrine is repugnant to the Wyoming Constitution. Tuttle v. Short, 42 Wyo. 1, 288 P. 524. The common law rule that personal actions die with the person became a part of the law of the State of Wyoming by virtue of Section 16-301, Wyoming Compiled Statutes 1945. The common law rule that such personal actions die is in conflict with the Wyoming Constitution and particularly with Article I, Section 8, Article IX, Section 4, and Article X, Section 4. The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. 12 C. J. 700; Wilfong v. Omaha and Council Bluffs Street Railway Company, 262 N.W. 537.

Section 4, Article IX Wyoming Constitution reads "in all cases in this state, whenever the death of a person shall be caused by wrongful act" the tort feasor shall be liable. True it does not state specifically that where the tort feasor dies the action for death shall not die, but it is impossible in stating fundamental law--or in framing constitutions--to specify every situation intended to be covered. The use of the word "all" should be sufficient. If use of this word does not clearly convey the intent of the framers of the Constitution, certainly the record of the Convention, as shown in the debates and proceedings, does--as does also their action in covering the subject matter or remedies for personal injuries in three separate places in the Constitution. It was the clear intention of the framers of the Constitution that such cause exist even after the death of the tort feasor.

The common law rule "actio personalis moritur cum persona" is contrary to the intendments of our Constitution and to the form of our present society and its customs and therefore should be rejected by this court. Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783; Harris v. Nashville Trust Co. 128 Tenn. 573, 162 S.W. 584, 49 L. R. A. (N. S.) 897. Conceding that the court did decide this question in the case of Tuttle v. Short, we nevertheless contend that the rule of stare decisis should not apply. We call attention to the prevalence of liability insurance among owners of automobiles at the present time and at the time this accident occurred in 1946. Such a situation did not exist in 1927, when the accident occurred out of which arose the case of Tuttle v. Short. At that time we had virtually no paved or oiled highways, vehicles were much fewer in number and traveled far slower. We had no highway patrol, and while there was some liability insurance carried by the owners of automobiles, it was not prevalent as it was in 1946. The change in this short time is sufficient reason in itself--if any reason is needed--for this court to announce a different rule than was announced in Tuttle v. Short. It is a maxim of the common law that if the reason for a rule fails, the rule itself should fail. In re Smith's Estate, Wyo. 97 P.2d 677, 11 C. J. S. 224. The rule of stare decisis is not an absolute one. Kelley v. Rhoads, County Assessor, 7 Wyo. 237. This court has often recognized the fact that the law is not static, but constantly growing and changing. Rinehart v. Rinehart, 75 P.2d 390.

For the defendants and respondents the cause was submitted upon the brief and also oral argument of Albert D. Walton and Vincent Mulvaney, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS.

At common law, where a cause of action for injury to either the person or property of another was such that it could be enforced only by an action ex delicto for damages, in which the plea of the general issue must be not guilty, it did not, as a general rule, survive the death of the person to or by whom the wrong was done; and this is still the rule, so that such a cause of action, or a pending action thereon, abates on the death of either party, except insofar as the rule has been modified or abolished by statute. 1 C. J. 184.

At common law, actions of tort for injury to property abated on the death of either party; but under the statutes enacted in England and in the several states, changing the common law rule, it is now the general doctrine that all actions and causes of action arising from torts to real or personal property--injuries to the estate by which its value diminishes--do not abate on the death of either the person injured or the wrongdoer, but survive to or against his personal representatives. 1 C. J. 187.

At common law, a cause of action for injuries to the person of another, whether by assault and battery, false imprisonment, or other wrongful act, or by negligence, did not survive the death of either the person who inflicted or caused the injury or the person injured; and this is still the settled rule in all jurisdictions except insofar as it has been abrogated or modified by statutory provisions. 1 C. J. 195, Sec. 363.

The statutes of several states which have attempted to change the common law rule have not undertaken to revive the action that could have been brought in case the wrongdoer had not died, but create a new statutory action against the personal representative of the wrongdoer, which is in no way a revival of the action that had abated. 61 A. L. R. 835.

The decision of Tuttle v. Short, 42 Wyo. 1 is not inconsistent with the provisions of Article I, Section 8, Article IX, Section 4 or Article X, Section 4 of the Constitution of the State of Wyoming.

The declaration in the Bill of Rights that courts shall afford a remedy for every injury of person, property or character does not of itself change existing law, and does not empower courts to legislate, or to amend, modify, or repeal laws to meet their ideas of what is natural justice. Except where altered by statute the common law is just as much a part of the local jurisprudence as are enactments of the legislature, and where a principle of such law has entered into our form of government, it is controlling, until by legislation express in its terms it is modified or negatived by the substitution of a new declaration on the subject. Moon v. Bullock, 151 P.2d 765.

The act of the State Legislature of 1947 changing the statutes of Wyoming with reference to the survival of a cause of action for death by wrongful act after the death of the wrongdoer, being Sections 3-402 and 3-404, W. R. S. 1945 has no retrospective effect.

BLUME, Justice. RINER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action in which the plaintiffs seek damages from the defendants on account of negligence of defendant's intestates in the operation of an automobile, causing injuries to one of the plaintiffs and also the death of Martha L. Mull, deceased. It is not necessary to mention motions filed in the case. The court sustained a demurrer to the petitions herein filed and, the plaintiff's refusing to plead further, a judgment was rendered in favor of the defendants. From that judgment, plaintiffs have appealed to this court.

The facts are substantially as follows: On July 22, 1946, George L. Wienbarg, owner of an Oldsmobile automobile, and Irma Louise Wienbarg, his wife, driver of the car, were driving in an easterly direction on highway No. 30 from Laramie toward Cheyenne. Clifford Lewis Mull, one of the plaintiffs herein was driving a Studebaker automobile in a westerly direction on the foregoing highway, having with him Martha L. Mull, apparently his mother. The two automobiles collided about five miles west of the City of Cheyenne. George L. Wienbarg and Irma Louise Wienbarg, the alleged tortfeasors, were killed in the collision. The plaintiff, Clifford Lewis Mull, sustained injuries, and Martha L. Mull died as a result of the collision on July 26, 1946. The plaintiffs in their petition allege that the collision arose by reason of the negligence of Irma Louise Wienbarg in operating the Oldsmobile automobile. They presented their claim for damages to the defendant, Jack L. Wienbarg, who was appointed as administrator of the estates of George L. Wienbarg and Irma Louise Wienbarg, deceased. The plaintiff, Clifford Lewis Mull claims damages in the sum...