Thorpe v. Union Pacific Coal Co.

• Decision Date: 27 March 1902
• Docket Number: 1334
• Court: Utah Supreme Court
• Parties: JENNIE THORPE and GEORGE THORPE, CHARLES E. THORPE, ALICE THORPE and MARGARET THORPE, by JENNIE THORPE, their Guardian ad litem, Appellants, v. UNION PACIFIC COAL COMPANY, a Corporation, Respondent

68 P. 145

24 Utah 475

JENNIE THORPE and GEORGE THORPE, CHARLES E. THORPE, ALICE THORPE and MARGARET THORPE, by JENNIE THORPE, their Guardian ad litem, Appellants, v. UNION PACIFIC COAL COMPANY, a Corporation, Respondent

No. 1334

Supreme Court of Utah

March 27, 1902

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action for the death of Charles H. Thorpe, by his heirs, against the defendant, a Wyoming corporation. From a judgment sustaining a demurrer to the complaint, the plaintiffs appealed.

AFFIRMED.

W. L Maginnis, Esq., and D. A. Reaville, Esq. for appellants.

The main contention made and the one supported by the court below is this; that the statute of Wyoming giving the right of action provides that the suit shall be brought by the personal representative and the proceeds distributed as the personal estate of the deceased, whilst this action is brought by the heirs at law of said deceased. Our statute (section 2912, R. S.) provides: "When the death of a person not a minor is caused by the wrongful act or neglect of another his heirs or personal representatives may maintain an action for damages against the person causing the death," etc.

There seems to be some contrariety of opinion between the courts as to whether the portion of these statutes designating the person by whom action is to be brought is a part of the right and therefore to be followed in whatever forum in which the suit may be brought or whether it is only a part of the remedy and therefore to be governed by the law of the forum but it seems to us that the better authority is to the latter effect. Majors v. Cowell, 51 Cal. 478. "The Highland Light," 12 F. 6477; Stewart v. Baltimore &amp Ohio Railroad Co., 168 U.S. 445; Texas Pacific Ry. v. Cox, 145 U.S. 593.

In the case of Sheridan v. Southern Pacific Company, Judge Marshall, in the circuit court of the United States for this district, decided this question in the same way. In that case the death occurred in Nevada but the Nevada statute is almost identical with the statute of Wyoming and is so in the particular we are considering. Judge Marshall's opinion is on file in the clerk's office but not reported.

Le Grand Young, Esq., and A. W. Agee, Esq., for respondent.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

--Charles H. Thorpe was killed by an accident in the defendant's coal mine in the State of Wyoming under circumstances of negligence on the part of the defendant company, as we must assume for the purposes of this decision, for which an action would lie in that State. The plaintiffs are the alleged heirs at law of the deceased. Jennie Thorpe, the widow, before the commencement of the action, was appointed guardian ad litem of the other plaintiffs, minor children of the deceased. The suit was brought in the district court of Weber county, in this State, and thereupon the defendant interposed a demurrer to the complaint upon the ground, inter alia, that "said defendant is a non-resident of the State of Utah, and that said plaintiff is not the personal representative of the deceased, Charles H. Thorpe, her husband." The demurrer was sustained, and, as a result the decisive question on this appeal is whether the heirs of the deceased had the right to bring the suit in this State, the accident having occurred in Wyoming, where the action, in such cases, must be brought in the name of the personal representative. If the deceased had been but injured through negligence of the defendant, he would even in the absence of a statute on the subject have had a right of action. Having been killed, however, his right of action ended with his life. Such was the universal rule at common law until a right was created by statute in favor of the heirs or next of kin to have redress for the wrong. In this, it appears, most of the states of the Union have followed what is commonly known as "Lord Campbell's Act" (9 & 10 Vict. c. 93). The right of action, then, in such a case, is not one that survives the death of the person, but one that is purely statutory. In pleading the statute of Wyoming the plaintiffs recognized this, and also the fact that, if they could recover at all, they must recover under the laws of that State, since the cause of action arose there. Section 3448, Revised Statutes of Wyoming, provides: "Whenever the death of a person shall be caused by the 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 to recover damages in respect thereof, then, and in every such case, the person who, or the corporation 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 murder in the first or second degree, or manslaughter." This section is in derogation of the common law, and creates a liability for damages on the part of a person or corporation through whose negligence, default, or wrongful act, a person has been killed. Section 3449, Revised Statutes Wyoming, reads: "Every such action shall be brought by, and in the name of, the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate. In every such case, the jury shall give such damages as they shall deem fair and just, not exceeding five thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased: provided, that every such action shall be commenced within two years after the death of such...