Woodford v. McDaniels

• Decision Date: 31 March 1914
• Parties: WOODFORD v. MCDANIELS.
• Court: West Virginia Supreme Court

81 S.E. 544

73 W.Va. 736

WOODFORD v. MCDANIELS.

Supreme Court of Appeals of West Virginia.

March 31, 1914

Submitted January 20, 1914.

Syllabus by the Court.

A cause of action ex delicto which abated by death, and did not survive, at common law, to or against the personal representative, does not survive by virtue of section 2, c 127 (section 4833), Code 1913.

Section 2, c. 127 (section 4833), Code, prescribes only the mode of procedure for the revival of actions which, at common law or by virtue of other statutory provisions, survive to or against the personal representative. It does not create a new cause, or give a new right, of action which did not exist before.

Section 20, c. 85 (section 4007), Code, does not authorize recovery of indirect or consequential damages resulting from the wrongful use of judicial proceedings, whereby the person injured was deprived merely of the use and benefit of property pending a suit subsequently dismissed on appeal for want of jurisdiction.

A cause of action for malicious prosecution does not, under the common law or by statute, survive against the personal representative, unless as a result thereof property is acquired by the wrongdoer which enures to his benefit or enhances the value of the estate in the hands of his personal representative.

Error to Circuit Court, Randolph County.

Action by Isaac C. Woodford against Isaac McDaniels for damages for malicious use of judicial process. Judgment for defendant and plaintiff brings error. Affirmed.

W. B Maxwell and D. H. Hill Arnold, both of Elkins, for plaintiff in error.

A. R Stallings and Samuel T. Spears, both of Elkins, for defendant in error.

LYNCH J.

By an action of trespass on the case, Woodford seeks recovery of damages against the defendant, occasioned, as he avers, by the malicious use of judicial process. He charges that McDaniels, by bill in equity, filed in a federal court, secured the appointment of receivers, who were authorized to take and who did take into their possession, management, and control a certain hotel and barroom under lease by Woodford, and certain goods used in the operation of the hotel and barroom, and thereby destroyed his business, resulting in the loss of the use of the personal property, the deprivation of profits which would have accrued under the lease, and the expenditure of costs and counsel fees incident to his defense therein; and that, upon appeal, the decree of appointment was reversed, the receivers discharged, and the bill dismissed for want of jurisdiction in the lower court. Pending the action at law, McDaniels died. Having been revived upon scire facias against his administratrix, the action was subsequently dismissed on her demurrer and motion.

In addition to defects in pleading claimed by defendant, the other and more vital questions relate to the right to prosecute the action against the personal representative.

In form, it is an action ex delicto; one not for the breach of contract, or of any duty or obligation arising out of any contractual relation between the original parties. It seeks recovery of damages by reason of McDaniels' interference with plaintiff's exercise of a right to pursue what he deems a legitimate business, and incidentally with the business itself, resulting from the prosecution of the proceedings in equity.

Except in so far as they are modified by statute, or are repugnant to the nature and character of our institutions, or are rendered inapplicable to the different and varying circumstances of our political system, the doctrines and principles of the common law obtain in the two Virginias. At common law a suit, whether founded on contract or tort, abated by the death of a sole plaintiff or of a sole defendant before trial or verdict, and could proceed no further. If the cause of action was one that would not survive, death terminated the right to prosecute the suit; but, if the cause of action was one that could or did survive, plaintiff or his personal representative was obliged to bring a new action against the defendant or his personal representative. Such was the necessary procedure.

The question presented, then, is whether the cause of action on which plaintiff declared survived against the personal representative of McDaniels, as plaintiff claims, under and by virtue of the concluding clause of section 2, c. 127, Code 1913.

In Cunningham v. Sayre, 21 W.Va. 440, in speaking of this clause, the court said: "When the Legislature * * * used the language that, 'if a plaintiff or defendant die pending any action, whether the cause of action would survive at common law or not, the same may be revived and prosecuted to judgment and execution, in the same manner as if it were a cause of action arising out of contract,' it is evident that it referred * * * to the general common-law rule that 'actions founded on contracts survive.' * * * It was not the object of the statute to create any new right, and give an action to the heir, devisee, or personal representative, which he had not at common law; but, where he had a right by suit to accomplish the same object substantially as the ancestor had in view in bringing the suit, that for convenience it should not abate on the ancestor's death, but might be revived."

In Curry v. Mannington, 23 W.Va. 14, after stating that "under the common law the rule was that all personal actions died with the person," the court said: "In the cases * * * of injuries to the person and not to the property or estate of the decedent, whether by assault, battery, false imprisonment, slander, negligence, or otherwise, if either the party who received or he who committed the injury die, the maxim applies rigidly, and no action can be supported either by or against his representative." The question there presented was whether the plea of the one-year statute of limitations applied to the action. See, also, Lee v. Hill, 87 Va. 497, 12 S.E. 1052, 24 Am.St.Rep. 666.

This clause was discussed by the Supreme Court of the United States in Martin v. Railroad Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311, and the conclusion reached that in this state "no action for personal injury can be maintained by the executor or administrator of the person to whom the wrong was done, except for a wrongful act, neglect, or default causing death." That was a case instituted in Berkeley county, this state, and removed to a federal court on the petition of the defendant. After reviewing and considering sections 19 and 20 of chapter 85, 5 and 6 of chapter 103, 12 of chapter 104, and the first five sections of chapter 127, the court, in the opinion, says: "It would hardly be consistent with the legislative intent apparent from the objects and the limits of those provisions, to give the clause relied on the effect of allowing all actions of tort whatever to be prosecuted after the death of the original plaintiff by his personal representative. The reasonable inference is that the clause relied on, like the rest of the chapter, is intended only to prescribe the mode of procedure in actions the cause of which survives either at common law or by virtue of other chapters of the Code, and that its whole effect is to avoid the necessity of bringing a new action when the right of action so survives, and not to give a new right of action which did not exist before." See Rowe v. Pulp Co., 42 W.Va. 551, 26 S.E. 320, 57 Am.St.Rep. 870. In discussing a similar statute, the court, in Railroad Co. v. Ritchie, 31 Md. 191, said it was "never intended to prevent the abatement of actions which died with the person."

Plaintiff cites Henning v. Farnsworth, 41 W.Va. 548, 23 S.E. 663, in support of his contention. The question there discussed, however, was whether the action abated by the death of one of several defendants, and not, as in this case, by the death of a sole defendant. See Means v. Barnes, 78 S.E. (W. Va.) 665.

What is, and what is not, a cause of action personal in nature is frequently determined by the question whether it is or is not assignable; assignability and survivability being convertible terms. If, therefore, the party in whom it exists cannot by contract, as by assignment, place it beyond his control, it will not survive. Selden v. Bank, 239 Ill. 67, 87 N.E. 860, 130 Am.St.Rep. 180; Francis v. Burnett, 84 Ky. 23; Lawrence v. Martin, 22 Cal. 173; 13 Enc. Pl. & Pr. 426; Blake v. Griswold, 104 N.Y. 613, 11 N.E 137; Cardington v. Fredericks, 46 Ohio St. 442, 21 N.E. 766; Comegys v. Vasse, 1 Pet. 193, 7 L.Ed. 108; 1 Cyc. 49; Railroad Co. v. Read, 87 Va. 189, 12 S.E. 395. The cause of action in this...