Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 23 April 1909
• Citation: 19 N.D. 38,121 N.W. 70
• Court: North Dakota Supreme Court
• Parties: SATTERBERG v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

19 N.D. 38

121 N.W. 70

SATTERBERG

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

April 23, 1909.

Syllabus by the Court.

Sections 7687, 7688, 7689, Rev. Codes 1905, portions of the statute providing for the recovery of damages for death by wrongful act, are as follows:

“Sec. 7687. In such action the jury shall give such damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery.

Sec. 7688. The action shall be brought by the following persons in the order named:

(1) The surviving husband or wife, if any.

(2) The surviving children, if any.

(3) The personal representative.

If any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, such person may bring the same.

Sec. 7689. The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of his heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares the judge may after the trial make any investigation which he deems necessary.”

Held, that brothers and sisters of one killed by wrongful act are included in the term “heirs at law,” as used in section 7689, when no parent, wife, or child survives the person killed.

The provisions of the Code giving a right of action and recovery for damages occasioned by death by wrongful act do not contemplate or require a legal obligation on the part of the deceased toward surviving heirs at law to entitle them to maintain the action or recover for the injury sustained by them through the death of the person of whom they are heirs.

The provisions of the Code referred to, being sections 7686 to 7691, both inclusive, give the right to recover for the death of one killed by wrongful act to such heirs at law of the deceased as are prevented by his death from receiving pecuniary aid, support, or benefit which he was either legally obligated to render, or which they were receiving, or had any reasonable expectation of receiving as a duty, or through a a recognized sense of obligation.

It is the fact of injury within the limits of the statute, rather than the legal obligation of the deceased which governs.

Appeal from District Court, McHenry County; Goss, Judge.

Action by Arvid Satterberg, as administrator of the estate of John Satterberg, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.Alfred H. Bright, Christianson & Weber, and Ball, Watson, Young & Hardy, for appellant. G. S. Wooledge and Murphy & Wooledge, for respondent.

By permission a supplementary brief in support of respondent's contention was filed by Heffron & Baird, attorneys for Ely Gullickson, administrator, v. Henry Schaffner, in an action pending in Stark county.

SPALDING, J.

This is an appeal from an order overruling appellant's demurrer to respondent's complaint in an action prosecuted by respondent, administrator, to recover damages for the death of John Satterberg, deceased. The complaint alleges that the deceased was killed while riding on one of defendant's passenger trains at Enderlin, N. D., on December 28, 1906, through defendant's negligence; that he was a single man, and left surviving no wife or children or father or mother, but four sisters and two brothers, the plaintiff, administrator, being one of the brothers; that these six persons are the sole heirs at law of the deceased; that the four maiden sisters lived with the deceased during his lifetime, and were dependent upon him for support, and that one of them was an invalid and wholly dependent upon him. To this complaint, the terms of which we have briefly outlined, the appellant interposed a general demurrer. In the district court this demurrer was overruled, and defendant appeals. The action was brought under the provisions of the statute of this state providing for the maintenance of an action for death by wrongful act. This statute embraces sections 7686-7691, both inclusive, Rev. Codes 1905, and is as follows:

“Sec. 7686. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, 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 or company 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, and although the death shall have been caused under such circumstances as amount in law to felony.

Sec. 7687. In such actions the jury shall give such damages as they think proportionate to the injury resulting from the death to the persons entitled to the recovery.

Sec. 7688. The action shall be brought by the following persons in the order named:

(1) The surviving husband or wife, if any.

(2) The surviving children, if any.

(3) The personal representative.

If any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, such person may bring the same.

Sec. 7689. The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of his heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purpose of determining such shares the judge may after the trial make any investigation which he deems necessary.

Sec. 7690. The action shall not abate by the death of either party to the record. If the plaintiff dies pending the action, the person next in order, entitled to bring the action, shall by order of the court be made plaintiff therein.

Sec. 7691. The person entitled to bring the action may compromise the same, or the right thereto, and such compromise shall be binding upon all persons authorized to bring the action or to share in the recovery.”

It is contended that the complaint fails to show a right to sue or recover. At common law no right of action for damages for death by wrongful act was given. Harshman v. Northern Pacific Ry. Co., 14 N. D. 69, 103 N. W. 412, and cases cited. It follows that the right of action, if any exists, is purely statutory, and the facts pleaded in the complaint must be such as to show the right of action under the statute, and it must be prosecuted by one of the persons to whom the statute has given the right to prosecute. Harshman v. Northern Pacific Ry. Co., supra.

The first statute conferring the right to maintain an action of this nature was Lord Campbell's act passed by the British Parliament in 1846 (9 and 10 Vict. c. 93). Similar statutes have been enacted by all the American states. Scarcely any two of these statutes are alike in terms or verbiage. The constructions placed upon them by the different courts of last resort are extremely diverse, many resting on the difference in verbiage of the statutes, and many others in apparent conflict. This court has not heretofore passed upon the questions presented in this appeal, and aside from a recent decision by the Supreme Court of Minnesota, to which reference will be made later, we discover no authorities specifically in point. It is conceded by appellant that this is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased, their protector. Stating it somewhat differently, we think the purpose of the statute is to provide compensation for the injury resulting to heirs at law of the deceased from the death. This is the measure of recovery fixed by section 7687, supra.

Appellant contends that the complaint shows upon its face that there are no living persons within the degree of relationship and dependency who can claim a right of recovery under this statute, and specifically for the reason that the statute does not authorize a recovery by sisters and brothers when the deceased leaves no surviving wife or children or parent. The substance of its argument is that the term “heirs at law” limits the recovery to husband or wife or children. In...