Webber v. St. Paul City Ry. Co.

• Decision Date: 09 October 1899
• Docket Number: 1,122.
• Citation: 97 F. 140
• Parties: WEBBER v. ST. PAUL CITY RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 140

WEBBER v. ST. PAUL CITY RY. CO.

No. 1,122.

United States Court of Appeals, Eighth Circuit.

October 9, 1899

C. E Joslin (J. F. George, on the brief), for plaintiff in error.

N. M Thygeson (M. D. Munn, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This was an action brought on August 12, 1898, by the executor of the last will of John E. Webber, who died on March 27, 1895 from the effects of an injury which he received on November 1, 1893, while he was riding as a passenger on one of the cars of the defendant in error, to recover the expenses of his sickness and the amount of the loss of his earnings between the time of his injury and the time of his death. The complain counted upon the contract of transportation solely. It was that the railway company made an agreement with the deceased to carry him safely; that it did not do so, but injured his back, head, and spine, and thereby destroyed his capacity to work and caused him to die; that between the time of his injury and the day of his death his injuries caused him to expend $4,000 for care, assistance, nursing, and medical attendance, and caused him to lose his earnings, which would have been $100 per month; and that the plaintiff in error was the executor of his will, and as such was entitled to recover these amounts from the defendant in error. The contract was made, the injury was inflicted, and the action was brought in the state of Minnesota. For more than 30 years prior to the commencement of the suit the statutes of that state contained these provisions:

'Section 1. A cause of action arising out of an injury to the person dies with the person of either party, except as provided in the next section. All other causes of action by one against another, whether arising on contract or not, survive to the personal representatives of the former, and against the personal representatives of the latter.

'Sec. 2. When death is caused by the wrongful act or omission of any party, the personal representatives of the deceased may maintain an action, if he might have maintained an action, had he lived, for an injury caused by the same act or omission; but the action shall be commenced within two years after the act or omission, by which the death was caused; the damages thereon cannot exceed five thousand dollars, and the amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person. ' Gen. St. Minn. 1866, p. 545, c. 77; Gen. St. 1878, p. 825, c. 77.

In 1891 section 2 was amended by the addition of this clause:

'Provided that any demand for the support of the deceased and for funeral expenses, duly allowed by the probate court, shall be first deducted. ' Gen. St. 1894, Secs. 5912, 5913.

Section 2 was again amended, in 1897, by the addition of this proviso:

'Provided, that if an action had been commenced by such deceased person during his lifetime for such injury which had not been finally determined, such action does not abate by the death of the plaintiff, but may be continued by the personal representatives of the deceased, for the benefit of the same persons and limited to the same amount of recovery as herein provided. ' Laws Minn. 1897, c. 261.

Under these statutes, the circuit court sustained a demurrer to the complaint, and dismissed the action, and this ruling is the only error assigned in this case.

The argument of counsel for the plaintiff in error, stated in the form of a syllogism, is: An action on a contract does not abate by the death of a party. This is an action on a contract. Therefore this action did not abate, and the executor of the will of the deceased may recover here. In support of this position he cites Bradshaw v. Railway Co., L.R. 10 C.P. 189; Leggott v. Railway Co., 1 Q.B.Div. 599; Broom, Leg. Max. pp. 907-909; 5 Am. & Eng.Enc.Law, p. 132; and various other text-books. None of the authorities which he cites, however, construe or treat of the statutes of Minnesota, or laws identical with them; and a careful examination of these text-books and decisions has failed to convince us that the conclusion of the counsel for the plaintiff in error can be successfully sustained, in view of the positive provisions of the Minnesota statutes. The legislature of that state was not limited in its power to a declaration that actions on contracts should survive, and that actions in tort should abate, on the death of the complainant; and the statute demonstrates the fact that it was not the purpose of the legislature to make that enactment, because it expressly provided in the last clause of section 1 that all other causes of action not mentioned in the first clause, whether arising on contract or not, should survive. The legislature had the undoubted right and authority to enact that some or all actions on contracts should abate, and that some or all actions in tort should survive. It had the right to establish for itself the test of abatement and survival, and by that test all actions within the limits of the state of Minnesota, whether brought in the state or federal courts, must be tried. Henshaw v. Miller, 17 How. 212; Martin's Adm'r v. Railroad Co., 151 U.S. 673, 692, 14 Sup.Ct. 533. It exercised this power, and provided that 'a cause of action arising out of an injury to the person dies with the person of either party, except as provided in the next section. ' We may lay aside the exception in this case, for the cause of action here in question is not of the character prescribed, nor was it brought within the time limited by the next section. The declaration then reads, 'A cause of action arising out of an injury to the person dies with the person of either party. ' The only question remaining is, did this cause of action arise out of an injury to the person? This is answered by another question: Would it have arisen had there been no injury to the person? And the unavoidable answer to that question is that it would not. It is for loss of earnings, and for the expense of care, nursing, and medical attendance, caused by the personal injury. If the injury had not been inflicted upon the person, the loss of earnings would not have been sustained; and the expenses of the care, nursing, and medical attendance would not have been incurred even if the contract of transportation had been entirely broken,-- even if the company had failed to carry the deceased an inch. It is not answer to this proposition to say that the personal injury was a breach of the contract, because the statute permits the survival of those causes of action only which did not arise out of a personal injury, whether or not the injury violated a contract. A finding that the cause of action did not arise out of the personal injury is indispensable to an escape from the provision of this section, and it cannot be truthfully said that this cause of action did not so arise. There is nothing in the statute to the effect that a cause of action ex contractu arising out of an injury to the person shall survive, while such a cause ex delicto shall abate. In order to sustain the contention of counsel for the plaintiff in error, it is necessary to ingraft a sweeping exception upon the act of the legislature, so that it will read: 'A cause of action arising out of an injury to the person dies with the person, except in cases in which the injury was the breach of a contract. ' It is very probable that such an exception would be much more comprehensive than the rule. However that may be, it is not the province of a court to make it. When the legislature has lawfully established a rule which limits the time or manner of maintaining a class of actions, and has made no exception to that rule, the conclusive presumption is that it intended to make none, and the courts have no power to do so. Madden v. Lancaster Co., 27 U.S.App. 528, 539, 12 C.C.A. 566, 573, and 65 F. 188, 195; McIver v. Hagan, 2 Wheat. 25, 29; Bank of State of Alabama v. Dalton, 9 How. 522, 528; Vance v. Vance, 108 U.S. 514, 521, 2 Sup.Ct. 854.

If doubts could arise whether or not the legislature intended what the plain words of section 1 express, when it enacted this statute, they would be dispelled by the reason of the rule, and by the subsequent legislative and judicial construction which the enactment has received. Section 1 declared that every cause of action arising out of a personal injury should die with the person, except as provided by section 2. Section 2 provided that when death was caused by the wrongful act or omission of a party the personal representatives of the deceased might...