Stanley v. Bircher's Ex'r

• Decision Date: 30 April 1883
• Citation: 78 Mo. 245
• Parties: STANLEY, Appellant, v. BIRCHER'S Executor.
• Court: Missouri Supreme Court

78 Mo. 245

STANLEY, Appellant,

v.BIRCHER'S Executor.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Hermann & Reyburn and C. P. & J. D. Johnson for appellant, cited Higgins v. Breen, 9 Mo. 493; Jewett v. Weaver, 15 How. Pr. (N. Y.) 132; Yertore v. Wiswall, 16 How. Pr. (N. Y.) 8; Pozzi v. Shipton, 8 Ad. & El. 963; Bretherton v. Wood, 3 Brod. & B. 54; Tichenor v. Hayes, 41 N. J. Law 193; s. c., 32 Am. Rep. 186; Redfield on Carriers, §§ 596 to 601.

Russell & Wendling for respondent, cited Nettleton v. Dinehart, 5 Cush. 543, 544; Faith v. Carpenter, 33 Ga. 79; Broom's Legal Maxims, (7 Ed.) 904, Raymond v. Fitch, 2 C. M. & R. 597; Wheatley v. Lane, 1 Saund. 216; Ham ble v. Trott, Cowp. 371; People v. Gibbs, 9 Wend. 29; Hench v. Metzer, 6 Serg. & R. 272; Walker's American Law, (7 Ed.) § 215, p. 655.

Broadhead & Haeussler also for respondent.

MARTIN, C.

This was an action for injuries to the person of plaintiff, alleged to have been caused by the negligence of the defendant's testator, who died on the 14th day of June, 1879. This action was brought on the 17th day of September following.

It is alleged in the petition that on the 10th day of June, 1878, Rudolph Bircher, the testator, was owner and proprietor of the Laclede-Bircher Hotel in St. Louis; that at the last mentioned date, the plaintiff, for a valuable consideration, became a guest in the hotel; that for the said consideration it became the duty of said Bircher and he agreed to furnish safe accommodations for the necessary and reasonable wants of the plaintiff; that he did not perform the duty or keep the agreement aforesaid in this, that in and adjoining one of the halls in the third story of the hotel, said Bircher maintained an elevator shaft or pit, reaching from the basement to the third story; that the door to it was unskilfully constructed and dangerous to guests, and was negligently left open by said Bircher and his servants; that at the date last aforesaid, the plaintiff, having occasion to retire to the water-closet, went into the hall-way where said shaft was located, and without any fault or negligence of hers, fell through the open door-way into said shaft and was precipitated to the bottom--a distance of about fifty feet, whereby she sustained great and serious bodily injuries, permanently laming her, for which she asked damages in the sum of $25,000.

The defendant, as executor of said Bircher, demurred on the ground that the cause of action did not survive as against the administrator or executor of the estate, and that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained and final judgment entered for defendant in the circuit court, which was affirmed in the court of appeals. 9 Mo. App. 99.

1. NON-SURVIVAL OF ACTION FOR PERSONAL INJURIES.

I am unable to perceive how the plaintiff can maintain her action, in the face of the statutes in force at the time of the injury. In the General Statutes of 1865, section 29, under the head of administrators, reads as follows: “For all wrongs done to the property, rights or interest of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrong-doer; and, after his death, against his executor or administrator, in the same manner and with the like effect in all respects as actions founded upon contracts.” Gen. St. 1865, 491, § 29. If there was no limitation or exception to this section, the plaintiff's remedy would be secured to her. But the next section operates as an express limitation or exception to it, and leaves the plaintiff at common law. It reads as follows: “The preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff or to the person of the testator or intestate of any executor or administrator.” Gen. St. 1865, 491, § 30. At common law this action did not survive as against the executor or...