Simons v. Kidd

• Decision Date: 22 March 1950
• Docket Number: 9075,9067
• Citation: 41 N.W.2d 840,73 S.D. 280
• Parties: BLAINE SIMONS, Special Administrator of the Estate of James Knight, Deceased, Respondent, v. MARVIN KIDD, Appellant.
• Court: South Dakota Supreme Court

73 SD 280, 41 NW2d 840 (1950)

BLAINE SIMONS,

Special Administrator of the Estate of James Knight, Deceased,

Respondent,

v. MARVIN KIDD,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. George A. Rice, Judge

#9067-#9075—Reversed

Davenport, Evans & Hurwitz, Sioux Falls, SD

Attorneys for Defendant and Appellant.

Blaine Simons, J. Gene McDonnell, Sioux Falls, SD

Attorneys for Plaintiff and Respondent.

Opinion Filed Mar 22, 1950

SMITH, Judge.

The above named deceased, his wife, and their only child were fatally injured on a highway south of Sioux Falls on the evening of October 23, 1948. Death came to the infant child and the father within a very short time after their injuries were received, but the mother lingered until October 27, 1948. After her death, on the theory that the death of James Knight, the husband, was caused by the negligence of the defendant, Marvin Kidd, the administrator of the estate of the husband brought this action under SDC 17.22 for the sole benefit of the estate of the wife.

The question presented for decision by this appeal of defendant from an adverse judgment is whether the cause of action for the wrongful death of the husband alleged to have accrued to the wife as the sole beneficiary under the cited act, survived her death, and hence can be prosecuted by the administrator of the husband’s estate for the benefit of her estate.

The cause of action is founded upon statutes reading in part as follows:

“Whenever the death or injury of a person shall be caused by a wrongful act, neglect or default, and the act, neglect, or default is such as would, have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the administrator or executor of the estate of such person as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, ... .”

SDC 37.2201, as amended by Ch. 172, Laws of 1947.

“Every such action shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the executor or regular or special administrator of the deceased person; and in every such action the jury may give such damages, not exceeding in any case ten thousand dollars as they may think proportionate to all injury resulting from such death to the persons respectively for whose benefit such action shall be brought. ...”

SDC 37.2203, as amended by Ch. 173, Laws of 1947.

It has been determined that these sections provide for a new cause of action on behalf of the specified beneficiaries for the injury resulting to them from the described death, and do not provide for the survival of the cause of action of the deceased for personal injury. Simons v. Kidd, 73 SD 41, 38 NW2d 883; Petersen v. Kemper, 70 SD 427, 18 NW2d 294; Jensen v. Juull, 66 SD 1, 278 NW 6, 115 ALR 1280; Ulvig v. McKennan Hospital, 56 SD 509, 229 NW 383; and Rowe v. Richards, 35 SD 201, 151 NW 1001, LRA, 1915E, 1075, AnnCas 1918A, 294.

The act which created this new cause of action for wrongful death makes no provision for the claimed survival. To the contrary, courts, whose views merit the highest respect, have read from like statutes, providing for a cause of action for the “exclusive benefit” of named beneficiaries, a legislative intention to proscribe such a survival as is here asserted. Doyle v. Baltimore & O. R. Co., 81 Ohio St. 184, 90 NE 165, 135 AmStRep 775; Schmidt v. Menasha Woodenware Co., 99 Wis. 300, 74 NW 797, 798. In the last cited case the court wrote:

“The fact that certain beneficiaries named therein take to the exclusion of others would seem to indicate that the legislature never intended that the provisions should inure to the benefit of persons not named therein.”

Cf. Note, 17 AnnCas 773.

Finding no provision for the survival of the wife’s cause of action in the act on which it is founded, we look for such a provision in our survival statutes. Because our inquiry deals with survival upon the death of the owner of a thing in action, it must center on the construction of SDC 51.0803, which reads in part as follows:

“A thing in action arising out of the violation of a right of property or out of an obligation may be transferred by the owner. Upon the death of the owner it passes to his personal representatives except where in the cases provided by law it passes to his devisees or successor in office.”

A thing in action is defined by SDC 51.0802 as “a right to recover money or other personal property by a judicial proceeding.”

It is apparent that SDC 51.0803, supra, was enacted to invest certain causes of action with the qualities of assignability and survivorship. It will be observed that two classes of things in action so invested are (1) those arising out of the violation of a property right, and (2) those arising out of an obligation. We must determine whether the thing in action which accrued to the wife under the wrongful death act upon the death of her husband, James Knight, because of the alleged negligence of defendant, is comprehended by either or both of the listed classes of things in action. We elect to deal with these classes in inverse order.

In Sherman v. Harris, 36 SD 50, 153 NW 925, Ann. Cas. 1917C, 675, in passing upon the validity of an assignment of a claim for damages for fraud and deceit in procuring a subscription to the capital stock of a banking corporation by the assignor, this court considered the meaning of the quoted provisions of SDC 51.0803 as it then appeared in Section 384, Civil Code, Revised Code of 1903, and determined that the word “obligation” in the sentence “a thing in action, arising ... out of an obligation, may be transferred by the owner” was employed by the legislature in its broadest sense and embraces all the obligations described in the Third Division of the Civil Code, Revised Codes of 1903. From an examination of sections 1114 to 2283, inclusive, contained in the described portion of that code, it will be observed that this pronouncement brought within the sweep of the word “obligation”, employed in the section under consideration, obligations arising from contract, obligations arising from particular transactions by operation of law, and obligations imposed by law. The holding was that the assignment there in question was valid, which by implication included a holding that a thing in action of the kind there under consideration would survive the death of its owner.

The problem which confronted this court in Sherman v. Harris was presented to the court of our sister state under identical statutory provisions and similar facts in Grabow v. Bergeth, 59 ND 214, 229 NW 282, 287. The lucid opinion of Mr. Justice Birdzell demonstrates, we think, that this court erred in holding that the word “obligation” was employed in the predecessor of SDC 51.0803 in its broadest sense. To reflect the logic of that opinion in all its force would require that we reproduce much of its contents. It is available to those interested. Our present purpose will be adequately served by presenting its reasoning in bare outline.

It reasons that to assign the broadest signification to the word “obligation” in the clause “arising out of the violation of a right of property or out of an obligation”, as was done by this court, is to cause the sentence to say that all things in action are assignable and survive the death of an owner. By reference to many cognate sections of statute, common to our two states, the opinion establishes that the legislature understood and intended that certain, rights of action would not survive the death of an owner. By way of example, we quote from the opinion as follows:

“Turning now to the Probate Code, section 8798 provides that actions for the recovery of real or personal property, or for the possession thereof, and actions founded upon contracts, may be maintained by and against executors and administrators in the same courts in which the same might have been maintained by or against their respective testators and intestates. Section 8800 provides that executors and administrators may maintain actions against any person who has wasted, destroyed, taken, carried away, or converted, the goods of their testator or intestate in his lifetime; also for trespass committed on real estate. ... It may well be asked, Why did the Legislature enumerate the actions to which executors and administrators might be parties in their representative capacity and limit them to such as should affect the property rights of the deceased in specific property, if all rights of action were deemed passed to his personal representatives by virtue of section 5446 of the Civil Code?”

Having thus made it obvious that the word “obligation” was employed in the statute under consideration in a limited sense, the opinion makes it plain that the legislature intended that word to comprehend only those obligations which arise from contracts, or from particular transactions by operation of law, and that it did not intend the word to embrace obligations imposed by law on all persons.

The authoritative force of this phase of the decision of Sherman v. Harris, supra, was destroyed by implication by the decision of this court in Ulvig v. McKennan Hospital, 56 SD 509, 229 NW 383. A cause of action arising out of the breach of an obligation imposed by law was under consideration, viz., a cause of action for damages for personal injury by negligence, and it was held that such a cause of action does not survive the death of the injured person.

We are in complete agreement with the reasoning and conclusion of Grabow v. Bergeth, supra. Therefore, we now...