Rodgers v. Ferguson
| Citation | 556 P.2d 844,89 N.M. 688,1976 NMCA 98 |
| Decision Date | 12 October 1976 |
| Docket Number | No. 2587,2587 |
| Parties | June RODGERS, duly appointed Administratrix of the Estate of Joseph Wheaton, and Mrs. Joseph Wheaton, Plaintiffs-Appellants, v. Marvin FERGUSON, Cristobal Montoya and Steere Tank Lines, Inc., Defendants- Appellees. |
| Court | Court of Appeals of New Mexico |
Under the common law, personal tort actions died with the person of either the plaintiff or defendant. Prosser, Law of Torts (4th Ed. 1971) § 126. This case involves a vestige of the common law rule not expressly covered by our statutes; specifically a cause of action based on damages accruing between a negligent injury and the subsequent unrelated death of the injured person.
The second amended complaint alleges a collision between a vehicle driven by Joseph Wheaton and a tractor trailer driven by Montoya and owned by Steere Tank Lines, Inc. Prior to filing suit, Wheaton died of causes unrelated to the accident. No claim for wrongful death is involved. Alleging that defendants were negligent, plaintiffs sought damages accruing between the time of the accident and Wheaton's death more than fifteen months later. Three categories of damages are alleged--personal injury, loss of wages and medical expenses. Montoya and Steere 1 moved for summary judgment on the basis that 'plaintiffs could not recover because claims for personal injury (other than wrongful death) are extinguished by and do not survive the death of the injured party.' Although the motion sought summary judgment only as to the personal injury claim, the trial court, in granting the summary judgment, dismissed the second amended complaint with prejudice. Plaintiffs appeal.
We discuss: (1) applicability of the common law rule; (2) Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938); (3) New Mexico survival statutes, and (4) the claims for lost wages and medical expenses.
The common law rule is ancient, having been amended by statute in 1330. Moragne v. State Marine Lines, 398 U.S. 375 at 385, 90 S.Ct. 1772 at 1780, 26 L.Ed.2d 339 at 348 (1970); Malone, The Genesis of Wrongful Death, 17 Stanford L.Rev. 1043 at 1048. The origin is obscure. 'The best conjecture on the subject is that it was a result of the development of the tort remedy as an adjunct and incident to criminal punishment in the old appeal of felony and the action of trespass * * *.' Prosser, supra, § 126. '(T)he non-survival rule came into being because of the criminal character of trespasses and * * * developed in connection with * * * serious intentional wrongs * * *.' Publix Cab Co. v. Colorado Nat. Bank, 139 Colo. 205, 338 P.2d 702, 78 A.L.R.2d 198 (1959).
The rule was Malone, supra, at 1051; see Winfield Death as Affecting Liability in Tort, 29 Columbia L.Rev. 239 at 242.
Over the years, various distinctions were made as to fact situations, to which the rule applied. Prosser, supra, § 126 states 'no rhyme or reasons is discernible in these distinctions * * *.' Malone, supra, at 1050 states that the rule 'has been the continuous target of criticism by writers.' Winfield, supra, at 249--250, criticized the rule insofar as it pertained to the death of the tort-feasor, but defended the rule insofar as it pertained to the victim who died. Winfield, supra, at 250 states that allowing recovery by the successors of a deceased victim would be 'consonant neither with abstract justice nor with the law of torts * * *.' This defense is answered by Smedley, Wrongful Death--Bases of the Common Law Rules, 13 Vanderbilt L.Rev. 605 at 608, 609:
'* * * (W)hen the function of the damages awards came to be recognized as compensatory rather than punitive, the reason for the rule ceased to exist.'
The foregoing discussion points out that historical application of the non-survival rule was to violent and intentional torts. It did not develop in connection with the type of tort in this case--negligence--because the tort of negligence did not evolve until approximately 1825. Prosser, supra, § 28. 'Thus it is manifest that the courts could not have been mindful of the action of negligence during the centuries that this rule was evolving.' Public Cab Co. v. Colorado Nat. Bank, supra. Absent specific justification, the rule should not apply to torts which did not exist when the rule developed. However, compare Gruschus v. Curtis Publishing Company, 342 F.2d 775 (10th Cir. 1965) which applied the rule to an action based on the right of privacy while acknowledging that the right of privacy as a tort action did not exist until the twentieth century.
The foregoing discussion also indicates that the reason for the rule ceased to exist once damage awards were recognized as compensatory. Kearny Code of Laws (1846), Courts and Judicial Powers, § 24 gave alcaldes jurisdiction over actions of trespass and trespasses on the case for injuries to persons not exceeding $50.00. Romero v. Silva, 1 N.M. (Gild.) 157 (1857) refers to a similar statute of the territorial legislature concerning justice of the peace jurisdiction. These authorities show that compensatory damages were recoverable in New Mexico prior to Laws 1875--76, ch. 2, § 2, which adopted the common law. See § 21--3--3, N.M.S.A.1953 (Repl.Vol. 4). Compensatory damages for injury to a child were sought in Murray v. S.C., D. & P. R'y Co., 3 N.M. (Gild.) 580, 9 P. 369 (1886).
The common law is not the rule of practice and decision if not applicable to conditions in New Mexico. Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct.App.1973); see Ickes v. Brimhall, supra. The rule that a claim for personal injury does not survive the death of the victim is not applicable to conditions in New Mexico because the tort of negligence did not exist when the rule developed and because there is no reason for such a rule in connection with compensatory damages. We add that defendants do not attempt to defend the common law rule.
In this first issue, we hold there is no valid justification for the common law rule. The second issue is whether Ickes v. Brimhall, supra, requires this Court to apply the rule. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). The third issue is whether New Mexico statutes require its application.
In Ickes, plaintiff's wife was killed in an automobile accident. Plaintiff, seeking to recover damages for the wife's wrongful death, sued the administrator of the estate of the driver of the automobile. The driver had died from injuries suffered in the accident. The decision was that 'the cause of action asserted against defendant as personal representative of the alleged wrongdoer did not survive the latter's death * * *.'
This appeal involves a claim for personal injuries where death did not result from the injuries suffered in the accident. Ickes is distinguishable on its facts.
Because of this factual distinction, defendants agree that Ickes is not an exact precedent. Defendants' view is that the language used in Ickes clearly shows that the common law rule was applied. Ickes states:
'Under the common law no cause of action for personal injuries resulting in death survived in favor of the personal representative of the deceased nor against the personal representative of the wrongdoer.'
The common law rule applied in Ickes pertained to injuries resulting in death. It is not the same common law rule involved in this case.
The following law review articles point out that the rule against survival of actions for injuries not resulting in death is different from the rule against survival of actions for injuries resulting in death. Winfield, supra, compare question 1 at 239 with question 2 at 241; Malone, supra, at 1044 writes about two separate rules, stating that the rule against wrongful death actions 'is of more recent origin as a distinct proposition'; Smedley, supra, at 605 refers to two common law principles 'overlapping in their effect and often confused in their application, but not identical'.
We cannot say that the Supreme Court in Ickes confused the two principles or gave judicial sanction to the rule involving injuries not resulting in death. The language used in Ickes clearly and specifically discussed the rule involving injuries resulting in death. Ickes is not precedent for the common law rule involved in this case; Ickes does not require this Court to apply the common rule concerning injuries not resulting in death.
Section 21--7--4, N.M.S.A.1953 (Repl. Vol. 4) reads:
'No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.'
If Wheaton had filed an action for personal injuries and subsequently died, his action would have survived under § 21--7--4, supra. If an...
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