Scott v. Munn, 42445

• Decision Date: 12 November 1962
• Docket Number: No. 42445,42445
• Citation: 146 So.2d 564,245 Miss. 120
• Parties: P. O. SCOTT v. Mrs. Jane MUNN, Administratrix, Estate of Marvin N. Munn.
• Court: Mississippi Supreme Court

Page 564

146 So.2d 564

245 Miss. 120

P. O. SCOTT v. Mrs. Jane MUNN, Administratrix, Estate of Marvin N. Munn.

No. 42445.

Supreme Court of Mississippi.

Nov. 12, 1962.

Hugh N. Clayton, B. N. Knox, Jr., New Albany, for appellant.

Mitchell, McNutt & Bush, Tupelo, L. G. Fant, Jr., Holly Springs, for appellee.

RODGERS, Justice.

This case came to this Court from the Circuit Court of Marshall County, Mississippi. Appellee obtained a judgment against appellant growing out of a lawsuit filed by Marvin Munn, during his lifetime, for damages growing out of an automobile accident, in which it was alleged that Mrs. Munn was injured. After the death of Mr. Munn, appellee was appointed administratrix of his estate, and, over the objection of the defendant, was permitted by the court to revive the action in her name, as administratrix.

It appears from the testimony that on the 12th day of May 1958, Marvin Munn was driving his Dodge sedan in an easterly direction on Highway 78 in Marshall County, Mississippi; that he was, at the time, traversing a curve a short distance west of Stover's Store, when Goldie Lee Metcalf, an agent, chauffeur and servant of the defendant, passed Mr. and Mrs. Munn in a Chevrolet truck, and, in so doing, collided with the automobile driven by Mr. Munn.

Mrs. Munn did not consider a sudden jerk to her head and neck significant at the time, although she suffered some pain. Several hours later, however, when the pain became so intense she could not sleep, she found she had considerable injury to her neck. She went to the hospital the next day and stayed two weeks, and stayed in bed three months thereafter at the home of her daughter. Testimony in the record shows that Mrs. Munn had a serious injury to her neck and spine. There was some question, however, as to how much of this injury was brought about by the accident, inasmuch as she had been treated for neck and spinal trouble before. X-ray pictures had been taken during the first treatment, and again after the accident. The doctor's testimony showed some additional injury and change had occurred after the first X-ray pictures were taken, and it was the opinion of the specialist that: '* * * after studies * * * patient had some old arthritic changes and some old discogenic changes, in all likelihood aggravated by the injury.'

It appears from the record in this case that the two real issues presented for determination by this Court are: (1) Did the various items of damage set up in the declaration survive the death of plaintiff under our statute? (2) Should we dismiss the appeal because appellant failed to prosecute with diligence?

Before proceeding to the foregoing issues, let us pause to point out that we are of the opinion that there is sufficient evidence in the record from which the jury could have determined that appellee was injured in the accident, caused by the negligence of appellant's agent, and sufficient proof to show that the hospital, doctors, nurses and drug bills were shown by the testimony. The testimony showed that during the period while plaintiff's wife was in bed that her husband lost her services.

The declaration in this case sought recovery of damages for hospital and medical expenses, including nursing and drug bills, loss of services, companionship and consortium of the plaintiff's wife, Mrs. Jane Munn. The first question to be determined by this Court is, was the cause of action filed by the late Marvin N. Munn personal so that it abated, in whole or in part, at his death?

Sec. 609, Miss.Code 1942, Rec., is in the following language: 'Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. And they shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased.' (Emphasis supplied.)

The pertinent part of Sec. 611, Miss.Code 1942, Rec., is as follows: 'When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.' (Emphasis supplied.)

These two code sections were formerly in one section, Hutchinson's Miss.Code 1848, Chap. 49, Art. 1(119), p. 672, and were written in the following language: 'Actions that Survive for or against Executor or Administrator. All actions which have been commenced and prosecuted for or against any testator or intestate (except actions of slander, and for injuries or torts done to the person), shall, and are hereby declared to survive for and against executors and administrators, with the same effect that they might or could have been had or maintained, for or against the testator or intestate; any law, usage or custom, to the contrary in anywise notwithstanding.'

The language of the two Code Sections as they now appear (supra Code) have remained as they are, since Miss.Code 1871, Sec. 1176, with perhaps one minor change: the words 'temporary administrator' were at first written 'administrator ad colligendum.' It will be observed from the language of the foregoing sections of the 1942 Code, that the actions which may be said to survive the testator or intestate, are 'personal actions.'

Under the common law, a personal action abated upon the death of one of the parties, it has been said that 'This rule is expressed in the maxim, Actio personalis moritur cum persona. The line of demarcation at common law separating those causes of action which survive from those which do not is that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the property and rights of property affected are merely incidental.' (Emphasis supplied.) 1 C.J.S., Abatement and Revival, Sec. 132, pp. 178-179. See also 1 Am.Jur., Abatement and Revival, Sec. 76, p. 67; 1 Am.Jur.2d, Abatement, Survival and Revival, Sec. 51, p. 86.

This rule 'has never been a favorite with the courts', 1 Am.Jur.2d, Abatement, Survival and Revival, Sec. 51, p. 87, and the courts have criticized the rule. Early in the history of English Statutory Law of Survival and Causes of Action, the rule was modified so as to enlarge the number of causes that survived and to restrict the operation of the rule in those causes in which the common-law rule was retained. 1 Am.Jur. 2d, Abatement, Survival and Revival, Sec. 52, p. 88; 1 Am.Jur., Abatement and Revival, Sec. 87, p. 73. Lord Campbell's Act, Sec. 1453, Miss.Code 1942, Rec., (passed in England in 1846), is said to be one of the statutes enacted to prevent the hardship caused by the common-law rule that an action died with one of the parties in ex delicto action. 16 Am.Jur., Death, Sec. 49, p. 39. A history of this act will be found in the case of I. C. R. R. Company v. Fuller et al., 106 Miss. 65, 63 So. 265.

In the case of McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484, this Court said: 'It cannot be that the Legislature intended that strictly penal statutes should be enforced against the dead, but intended that the strict line of demarcation should be followed by the courts in the definition of 'personal actions' in contra-distinction to the definition of 'penal actions." And then said:

'We conclude that the term 'personal action' in its broadest sense includes all actions except those relating to or for real estate, but in this statute is used in the restricted sense as defined in Corpus Juris and authorities there cited, heretofore set out.

'Statutory penalties may not be enforced against the dead; therefore this cause cannot be revived in the name of the administratrix * * *.'

In the case of Catchings v. Hartman, 178 Miss. 672,...