Putman v. Southern P. Co.

• Decision Date: 15 July 1891
• Citation: 21 Or. 230,27 P. 1033
• Parties: PUTMAN v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

27 P. 1033

21 Or. 230

PUTMAN v. SOUTHERN PAC. CO.

Supreme Court of Oregon

July 15, 1891

Appeal from circuit court, Lane county; M.L. PIPES, Judge.

Action by Catherine Putman against the Southern Pacific Company, to recover damages for the death of plaintiff's son, Robert Putman. There was judgment for defendant, and plaintiff appeals. The judgment was at first reversed in this court but subsequently, on rehearing, was affirmed.

(Syllabus by the Court.)

Under section 34, Hill's Code, a mother, during the continuance of the relation of parent and child, may maintain an action in her own right for damages caused by the death of her child, while section 371, Id., gives to the personal representative a right to recover for any injury which the estate may have sustained by reason of the death of an adult or one emancipated from parental service.

B.B Beekman and Watson, Hume & Watson, for appellant.

Bronaugh, McArthur & Bronaugh for respondent.

LORD J.

This is an action brought by the plaintiff, as the widowed and dependent mother of Robert Putman, deceased, to recover damages from the defendant company on account of his death. In substance, the complaint alleges that the deceased was in the twenty-third year of his age, was active, strong, in good health, etc., and that up to his death by the wrongful act of the defendant, and long prior thereto, he had contributed largely to the plaintiff's support, and would have continued to do so if he had lived, and that she was, and still is, in great need, etc. After making the usual denials, the answer sets up, as a separate defense, that the said Robert Putman was, at the time of his death, a married man, and left a widow surviving him, etc.; the appointment of an administrator of the estate of Robert Putman; and the recovery of a judgment by such administrator against the defendant in another action for his death, etc., and the payment and satisfaction thereof. A demurrer to this defense, as insufficient in law to defeat a recovery, was overruled, and judgment thereupon was rendered in favor of the defendant. This action is based on section 34, Hill's Code, which provides: "A father, or in case of the death, or the desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward;" while the action by the administrator was prosecuted under section 371 of Hill's Code, which provides: "When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person." That these sections were intended to give distinct and independent rights of action seems manifest from a consideration of the terms of section 369, preceding, which, after providing that a cause of action arising out of an injury to the person dies with the person of either party, except as provided in section 371, supra, expressly declared that "the provisions" of title 6 (which includes section 371) "shall not be construed so as to *** defeat or prejudice the right of action" given by section 34, supra. The action brought by the plaintiff for the injury she sustained by the wrongful death of her son, who was a married adult, and left a widow surviving him, is based on the hypothesis that the word "child," as used in that section, is not the equivalent of "minor;" that the relation of parent and child may continue after majority as well as before; and that when it does so exist, in fact, the parent injured by such death would have a right of action, within the meaning of section 34. This view of that section, coupled with section 371, supra, regards the two as intended to accomplish the same purpose as the statutes 9 & 10 Vict. c. 93, commonly known as "Lord Campbell's Act," or those of the American states modeled upon it. At common law, no action could be maintained for the death of a human being caused by the wrongful act of another. Its maxim was actio personalis moritur cum persona. Lord Campbell's act, and the laws of those states which, in one form or another, have adopted it, were innovations upon this doctrine of the common law, and designed to supply or obviate its defect by giving to the personal representative a right to recover compensation as trustee for the benefit of the wife, husband, parent, and child, left in a worse pecuniary position by reason of the injured person's death. The right of action is not given to the personal representative for the benefit of the estate, but the action is "for the benefit of the wife, husband, parent, and child," and the "executor or administrator of the party deceased is a mere nominal party, who sues for the benefit of the parties named in the act, and who are severally to have damages proportioned to the injury resulting to each." Blake v. Railroad Co., 18 Q.B. 93. The damages suffered by the estate of the deceased would have nothing to do with the amount of recovery. The theory of such statutes is that those entitled to its benefits have a pecuniary interest in the life of the person whose death was occasioned by the wrongful act, and that the value of the injury sustained is to be ascertained by the jury, and apportioned as directed by the law. It is to compensate them for the pecuniary loss they have sustained, and the damages must be restricted to an amount sufficient, in a pecuniary sense, to indemnify them for such loss on account of the death of the injured person.

"Lord Campbell's act," said Mr. Justice QUAIN, "gives an entirely new action, not an action connected with the estate of the deceased in the slightest degree, and the damages recoverable in it would be no part of the estate of the deceased." Bradshaw v. Railway Co., L.R. 10 C.P. 189. Under such statutes, then, the damages recoverable are never assets of the decedent's estate, to be applied according to its general necessities, but compensation wholly for the pecuniary loss sustained by those injured by his death, to whom such damages exclusively belong, and to whom they are to be distributed as may be directed by their provisions.

Under our statute, (section 371, supra,) the damages recoverable which are not to exceed $5,000, are to be administered as other personal property of the deceased. They become assets to be applied by the administrator to the payment of debts, or distributed, as the exigency of the estate may require, and the law governing his duties as administrator may direct. He sues in his capacity as a legal representative of the estate, to recover, by the way of damages, for the loss which the estate has sustained, and not as trustee for those named in the act as its beneficiaries to recover the pecuniary loss which has been inflicted upon them by his death. In the one case, the object is to recover the loss sustained by the estate, but in the other to recover the pecuniary loss sustained by the designated relatives. The difference is between the damage done to the estate and the damage done to them. That to the estate is measured as near as can be by the value of the life lost, and that to the widow and next of kin by the value of the life lost to them. The right of action by the administrator for the benefit of the estate is co-extensive with the value of the life lost, while the right of recovery for the exclusive benefit of the widow and next of kin is co-extensive with the pecuniary injury resulting to them. In either case, as a basis for estimating damages, the expectancy of the life of the deceased, his age, health, habits, occupation or business, earnings, etc., are all important elements to be considered, with no other difference than in one case to get at the value to be derived from the continuance of the life of the deceased, as an injury to the estate, according to rational probabilities, and in the other to ascertain the present value of the beneficiary's interest in the continuance of his life. By force of section 371, the damages recovered become a part of the general assets of the estate, which, under our statute of distribution, are applied--First, to the creditors; and, second, to the next of kin; and which belongs to the latter, not strictly by a right of action for a pecuniary injury sustained by them as its beneficiaries, but by virtue of a kinship through the statute for the distribution of the estates of decedents. While, then, it is true that the right of action is given to the administrator as the legal representative of the estate, and he sues for its benefit, and the damages recovered become a part of its assets, yet the fact remains that, for all substantial purposes, the administrator, in the prosecution of that action and the distribution of its proceeds, represents, collectively, all who were interested in the continuance of that life, whether as creditors, or as wife, or as distributees. But, in giving this right of action to the administrator, section 371 makes no distinction on account of the age of the person whose death has been caused by the wrongful act or omission, and by its literal reading would seem to indicate that an action may be brought for the death of a child or an adult. But the loss of services before majority is an injury to the parent, and not the estate of the child, unless emancipated, and when his services are valuable. Besides, no injury would likely result to the...