Russell v. Cox

• Decision Date: 14 April 1944
• Docket Number: 7163
• Citation: 65 Idaho 534,148 P.2d 221
• Parties: RUTH RUSSELL, Appellant, v. MARCUS E. COX, Incompetent, by Leonard D. Cox, His Guardian, Respondent
• Court: Idaho Supreme Court

148 P.2d 221

65 Idaho 534

RUTH RUSSELL, Appellant, v. MARCUS E. COX, Incompetent, by Leonard D. Cox, His Guardian, Respondent

No. 7163

Supreme Court of Idaho

April 14, 1944

Rehearing denied May 8, 1944.

1. Death

Where decedent's mother and husband were her only heirs and death was caused by wounds inflicted upon decedent by husband, mother was entitled to prosecute wrongful death action against husband. (I.C.A., sec. 5-311.)

2. Death

The wrongful death action is not a survival action which accrues to decedent or her estate, but is a new cause of action for benefit of heirs and accrues only immediately following decedent's death. (I.C.A., sec. 5-311.)

3. Death

Where husband killed wife, relation of husband and wife terminated and statutory wrongful death action in favor of wife's heirs accrued, and husband could not contend that wrongful death action was barred by asserted rule that an action in tort cannot be maintained by wife against husband. (I.C.A., sec. 5-311.)

4. Husband and wife

Where husband killed wife, thereby terminating relation of husband and wife, recovery in statutory wrongful death action which accrued in heirs upon wife's death was not community property. (I.C.A., sec. 5-311.)

5. Death

The circumstances that, where death results from wrongful act of another, victim may, in his lifetime, sue for damages or compromise his cause of action for personal injuries, does not militate against right of heirs or personal representatives of victim to prosecute their independent action for wrongful death. (I.C.A., sec. 5-311.)

6. Death

The cause of action which accrues to one wrongfully injured during such person's lifetime may be prosecuted or compromised by injured person and receipts inure to benefit of such person's estate, but right of action which accrues on death of such person can only be prosecuted by such person's heirs or personal representatives and does not benefit estate. (I.C.A., sec. 5-311.)

7. Death

The rule that decedent's heirs, in wrongful death action, can only recover if decedent could have recovered damages had he not been killed, contemplates that heirs' cause of action arises out of same state of facts as decedent's cause of action for his injuries, and that it must be shown in either event that injury was result of wrongful or negligent act with added burden on heirs to show that decedent died as result of such wrongful or negligent act. (I.C.A., sec 5-311.)

Rehearing Denied May 8, 1944.

Appeal from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Judge.

Reversed and remanded with direction to overrule demurrer.

Ralph L. Albaugh and E. H. Hillman for appellant.

The word "heirs," as used in I. C. A. Sec. 5-311, means such heirs as are entitled to inherit from a deceased person under the provisions of I. C. A. Sec. 14-103. (Whitely v. Spokane, etc. Ry. Co., 23 Ida. 642, affirmed in 237 U.S. 487, 59 L. ed. 1060; I. C. A. 5-311.

The mother of a deceased person is the only necessary party plaintiff in an action for wrongful death against the husband of such deceased person, where the decedent died childless and was pre-deceased by her father. (Whitely v. Spokane, etc. Ry. Co., 23 Ida. 642, affirmed in 237 U.S. 487, 59 L. ed. 1060; I. C. A. Sec. 5-311; I. C. A. Sec. 14-103.

An action for wrongful death is not precluded merely because one of the beneficiaries, designated by the statute, is the tort-feasor. (Whitely v. Spokane, etc. Ry. Co., supra; I. C. A. Sec. 5-316; Robinson's Adm'r. v. Robinson, (Ky.), 220 S.W. 1074; Ann. 23 A. L. R. 648; Ann. 30 A. L. R. 500.

I. C. A. Sec. 5-311 creates a new cause of action for the benefit of the heirs of a deceased person. (Whitely v. Spokane etc. Ry. Co., supra; Kaczorowski vs. Kalkosinski, (Pa.), 184 A. 663 at pp. 663-6; Rowe v. Richards, (S. D.), 151 N.W. 1001, at p. 1003.)

The common-law disability of one spouse to bring action aginst the other for a personal injury does not preclude an action for wrongful death by the statutory beneficiaries against a husband who kills his wife. (Kacjorowski v. Kalkosinski, (Pa.), 184 A. 663, at pp. 664-6; Pezzulli v. D'Ambrosia, (Pa.), 26 A.2d 659.)

Jones, Pomeroy & Jones and J. H. Andersen for respondent.

At common law a tort committed by one spouse against the person or character of the other does not give rise to a cause of action in favor of the injured spouse. (27 Am. Jur. Sec. 589, p. 191; Thompson v. Thompson, 54 L.Ed. 1180; 30 L. R. A. N. S. 1153; 30 C. J., Sec. 317, p. 714.)

In an action for death by wrongful act, the act, neglect or default must have been such as would have entitled the party injured to maintain an action therefor if death had not ensued. (Tiffany on Death by Wrongful Act, 2 E. Sec. 61; Sprouse v. Magee, 46 Ida. 622-627; Northern Pacific Ry. Co. v. Adams, 192 U.S. 440; 48 L.Ed. 513; Helgeson v. Powell, 54 Ida. 667; 34 P.2d 957; Dallas Ry. & Terminal Co. v. High, 103 S.W.2d 735, (Tex.); Keister v. Keister, 96 S.E. 315; 1 A. L. R. 439.)

Ailshie, J. Givens and Dunlap, JJ., concur. Holden, C. J., dissents.

OPINION

Ailshie, J.

This is an appeal from a judgment sustaining demurrer to plaintiff's complaint and dismissing her action. The complaint alleges:

"That the plaintiff, Ruth Russell, is the mother, and the defendant, Marcus E. Cox, is the surviving husband of Lottie Melvina Cox, deceased; that the decedent died childless, and she was pre-deceased by her father; that the said plaintiff and the said defendant are all of the heirs at law of the said decedent.

"That the defendant, Marcus E. Cox, on or about the 16th of July, 1942, with force of arms, did wrongfully shoot and mortally wound the plaintiff's daughter, Lottie Melvina Cox, of which mortal wound her said daughter, on the 16th day of July, 1942, died; . . . ."

The action was instituted under sec. 5-311, I. C. A., which reads as follows:

"When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just."

Respondent contends that "at common law a tort committed by one spouse against the person or character of the other does not give rise to a cause of action in favor of the injured spouse." It is further contended that "In action for death [sec. 5-311] by wrongful act the act must have been such as would have entitled injured party to maintain an action therefor if death had not ensued."

On the other hand, appellant contends that the statute (sec. 5-311, I. C. A.) creates "a new cause of action. . . . for the benefit of a third person"; and that it did not accrue to the deceased in his lifetime but accrued only immediately following his death.

We had the consideration of this statute before us in Whitley v. Spokane, etc., Ry. Co., 23 Ida. 642, 658, 132 P. 121, and held, among other things, that "The cause of action is not anything that ever belonged to the decedent or to his estate. It never accrued to the decedent." In the course of our discussion of the question involved, it was said:

"This brings us to a consideration of the nature of this cause of action and the status of respondent in the courts of Idaho. Sec. 4100 of the Rev. Codes [now sec. 5-311, I. C. A.] authorizes the prosecution of an action by the 'heirs or personal representatives' of a deceased person against a person wrongfully causing the death of such person, and any judgment obtained in such an action inures to the benefit of the heirs of the decedent, and in no case becomes a part of the assets of the estate of the deceased. Except for this statute, no such action could be prosecuted in this state and no such cause of action could accrue in this state. [Citing cases]. The legislature had this power to confer this right on any heir or representative it saw fit to name or withhold the authority altogether. (Maysville Street R. R. & T. Co. v. Marvin, 59 F. 91, 8 C. C. A. 21.) The cause of action is not anything that ever belonged to the decedent or to his estate. It never accrued to the decedent. The action is allowed upon the theory that the wrongful death of the ancestor works a personal injury to his heirs, in that it deprives them of some pecuniary or other benefit which they would have received except for the death of the ancestor. The statute confers this right of action on the heirs, and it gives it directly to them or a personal representative such as an executor or administrator, and when such representative prosecutes the action, he does so as trustee for the heirs."

That case was taken to the Supreme Court of the United States (Spokane & I. E. R. Co. v. Whitley, 237 U.S. 487, 59 L. ed. 1060), on writ of certiorari and was presented to that court on the theory, that the Idaho decision failed to give full faith and credit to the judgment of a sister state, in violation of "the full faith and credit clause" of the Federal Constitution. In the course of the discussion in the opinion in that case, Mr. Justice Hughes, speaking for the court, said:

"The construction of that statute by the supreme court of Idaho with respect to the nature of the right of action created, is in accord with the accepted view of statutes similar to Lord Campbell's act. The recovery authorized is not for the benefit of the 'estate' of the decedent; the proceeds of the recovery are not assets of the estate. Where the personal representative is entitled to sue, it is only as trustee...