Seymour v. Richardson

• Decision Date: 09 March 1953
• Docket Number: No. 4044,4044
• Citation: Seymour v. Richardson, 194 Va. 709, 75 S.E.2d 77 (1953)
• Parties: RALPH SEYMOUR AND BURFORD BUICK CORPORATION v. LUCILLE S. RICHARDSON, ADMINISTRATRIX OF THE ESTATE OF HENRY CLOPTON RICHARDSON, DECEASED. Record
• Court: Virginia Supreme Court

Page 77

75 S.E.2d 77

194 Va. 709

RALPH SEYMOUR AND BURFORD BUICK CORPORATION v. LUCILLE S. RICHARDSON, ADMINISTRATRIX OF THE ESTATE OF HENRY CLOPTON RICHARDSON, DECEASED.

Record No. 4044.

Supreme Court of Appeals of Virginia

March 9, 1953.

James, Richardson and James, for plaintiffs in error.

Hall and Martin, for defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

On November 25, 1950, Henry C. Richardson was injured in a collision between an automobile in which he was riding and one driven by Ralph Seymour and owned by Burford Buick Corporation. On April 11, 1951, Richardson brought an action for damages against Seymour and the corporation. On November 9, 1951, before the case was tried, Richardson died of a heart attack, not related to the injuries received in the accident. On January 26, 1952, the action was revived in the name of Richardson's administratrix and thereafter was tried by a jury which returned a verdict for the plaintiff for $10,000, on which the court entered the judgment to which this writ of error was granted.

It is not disputed that the evidence was sufficient to establish that the accident was due to the negligence of Seymour, and the liability of the defendants is not now at issue. The main question on this appeal is whether the mental anguish, pain and suffering of the decedent, Richardson, were proper elements of damage. Over the objection of the defendants the court admitted evidence of those elements, instructed the jury that it was proper to take them into consideration and refused an instruction offered by the defendants that they were not proper elements of damage.

The defendants contend that recovery for mental anguish, pain and suffering is expressly prohibited by section 8-628.1 of the Code, as follows:

'No cause of action for injuries to person or property shall be lost because of the death of the person liable for the injury. No cause of action for injuries to person or property shall be lost because of the death of the person in whose favor the cause of action existed, provided, however, in such action no recovery can be had for mental anguish, pain or suffering, * * *.'

This section was added to the Code by Acts 1950, chapter 481, page 948, entitled 'AN ACT to amend the Code of 1950 by adding a section numbered 8-628.1 to provide for the survival of certain actions. ' By Acts 1952, chapter 378, page 671, a proviso was added limiting the time for bringing action. Code, Section 8-628.1, 1952 Cum. Supp.

The trial court held that section 8-628.1 does not apply where an injured person brings suit and thereafter, prior to trial, dies from a cause not connected with his injuries, as was the case here; but that it applies only where the person injured dies from a cause unrelated to his injuries without having brought suit therefor. The court was of opinion that section 8-640, applied to the situation in this case, where the action was commenced by Richardson himself.

Section 8-640 of the Code provides that 'the right of action' under sections 8-633 and 8-634 (which are the statutes giving a right of action for death by wrongful act, neglect or default), shall not abate by the death of the defendant; and that when an action for damages is brought by a person injured by another's wrongful act, neglect or default, and the injured person dies pending the action, the action shall not abate but may be revived in the name of his personal representative.

Section 8-640 is the present form of section 2906 of the Code of 1887, as amended. The original section 2906 provided that if a person injured by the wrongful act, neglect or default of another bring suit and then die pending the action, 'and his death is caused by such wrongful act, neglect or default,' his action might be revived in the name of his personal representative, and the pleadings should thereupon be amended to conform to an action under the wrongful death statutes. By an amendment made in 1894, Acts 1893-94, chapter 88, page 83, the quoted words and the provision for amending the pleadings were omitted from the statute, and in Birmingham v. Chesapeake &c. R. Co., 98 Va. 548, 37 S.E. 17, decided in 1900, it was held that the object of the amendment was not to make all actions for personal injuries revivable, but to give a right of revival in cases where the person injured died pending the action 'without regard to the cause of death,' which right of revival did not exist before the amendment 'except in those cases where the plaintiff died as a result of the injuries.'

Section 2906 of the 1887 Code, as amended by the 1894 act, and as revised, became section 5790 of the Code of 1919. The Revisors' Note to that section explained that it was not intended by the revision to change the holding in the Birmingham case, and the legislature was requested to make the needed changes. This was done by Acts 1920, chapter 26, page 27, amending section 5790 to make it read as section 8-640 does now, except for the final sentence of the act, with which we are not presently concerned. *

The Revisors also added this note to section 5790: 'For a personal injury not resulting in death, for which no action is brought by the injured party in his lifetime, no provision is now, or has ever been made, and it simply dies as at common law. ' See also Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269; 1 Am. Jur., Abatement and Revival, § 133, p. 92.

Section 8-640, as noted above, gives a right of revival in cases where the plaintiff dies pending the action, without regard to the cause of death. Birmingham v. Chesapeake &c. R. Co., supra. In such case if death resulted from the injury, the pleadings are required to be amended, and the case proceeded with as if brought under the death by wrongful act statutes. In that event there could be no recovery for the mental anguish, pain or suffering of the decedent. Virginia Iron &c. Co. v. Odle's Adm'r, 128 Va. 280, 309, 105 S.E. 107, 116; 5 Mich. Jur., Death by Wrongful Act, § 16, p. 629.

But the plaintiff argues that since her decedent's death did not result from the injury and since the action brought by him was revived in her name as his personal representative, she prosecutes his action and is entitled to recover the same damages as he would have been entitled to recover, which would have included his pain and suffering. See Norfolk &c. Ry. Co. v. Marpole, 97 Va. 594, 600, 34 S.E. 462, 464; 5 Mich. Jur., Damages, § 30, p. 519. In support of her contention she cites Anderson v. Hygeia Hotel Co., supra.

In that case an injured plaintiff claimed that the revival provision in what was then section 2906 of the 1887 Code (now § 8-640) caused the limitation of his action to be five years under section 2927 of the 1887 Code (now § 8-24). In holding that a one-year limitation applied, the court said that the legislature in enacting the death by wrongful act statutes 'plainly did not intend to continue or cause to survive his [plaintiff's] right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action.' 92 Va. at p. 691, 24 S.E. at p. 271. It was further said that if the effect of the statute was to cause the 'right of action' of the injured person to survive, the suit by his personal representative would be to recover damages for the injury the deceased had sustained and the detriment caused to his estate; that there would be the same elements of damage for the consideration of the jury, and the evidence 'would mainly relate to and the damages be for the physical and mental suffering of the deceased and the injury and loss generally sustained by him and his estate. * * *. ' 92 Va. at p. 693, 24 S.E. at p. 271.

The Anderson case, however, was dealing with the effect of the statutes of limitation on the right of action. 'It is frequently the case that more or less confusion arises from a failure to distinguish between the cause and the right of action. 'A cause of action is said to accrue to any person when that person first comes to a right to bring an action. There is, however, an obvious distinction between a cause of action and a right, though a cause of action generally confers a right. * * *.' ' Lewis' Adm'r v. Glenn, Trustee, 84 Va. 947, 979, 6 S.E. 866, 882. Mercer v. Richmond 152 Va. 736, 744, 148 S.E. 803, 805. In the latter case the question was whether the sixty-day notice of injury required by city ordinance to be given before a suit could be maintained related to the date of the injury or to the qualification of the personal representative of the injured person whose death resulted from the injury. The court said that it agreed with the principle stated in the Anderson case, and other cases cited, that the right of action which accrued to the administrator upon the death of his intestate was entirely different from the right of action which accrued to the injured party, but that the right of action referred to in those...