Brown v. Chicago & Northwestern Railway Co.

77 N.W. 748, 102 Wis. 137, 1899 Wisc. LEXIS 3

Opinions

The following opinion was filed December 16, 1898:

Marshall, J.

Two questions are presented on this appeal : (1) Can brothers and sisters of one wrongfully killed recover damages from the wrongdoer to compensate them for the pecuniary loss thereby sustained ? (2) Does a cause of action for damages to a person, because of an injury from the effects of which, death ensues, survive to his administrator for the benefit of his estate ? The decision of either -of these questions in favor of the appellant must result in a reversal of the order appealed from.

Actions for death losses sustained by surviving relatives are wholly statutory, and therefore, unless clearly thus given, do not exist at all. The subject in this state is covered by secs. 4255, 4256, Stats. 1898, which provide that if the death of a person be caused by the wrongful act of another under such circumstances that if death had not ensued such person could have recovered of such other damages for his injury, such other shall be liable to an action for damages notwithstanding the death, such action to be brought and prosecuted in the name of the personal representative of the deceased person for the benefit of the husband or widow of such person if there be such surviving, otherwise for the benefit of such person’s lineal descendants, or, in default of such descendants, such person’s lineal ancestors. We are asked to hold that by such statutes the right of action for the wrongful death of a person is conditional only upon the circumstances being such that if death had not ensued the decedent could have proceeded against the wrongdoer for damages. If the statute were susceptible of that construction, in any reasonable view of the language used, and we- think it is not, the contrary view has been too long established as its true meaning to leave the matter open to question at this time. In Woodward v. C. & N. W. R. Co. 23 Wis. 400, decided thirty years ago, it was held that unless a person named in the statute as entitled to the benefit of a recovery when obtained be shown to be in being by the allegations of the complaint, the calls of the statute are not satisfied and the action for damages for the death cannot be sustained. That is in line with the numerous decisions in this country and England where similar statutes exist, as abun- clantly appears in. the opinion of the learned chief justice in the case cited, and the numerous authorities cited there by counsel. It has never been since questioned successfully in this court, but on the contrary has been repeatedly affirmed. Topping v. St. Lawrence, 86 Wis. 526; Regan v. C., M. & St. P. R. Co. 51 Wis. 599; Gores v. Graff, 77 Wis. 174; Schmidt v. Menasha W. W. Co. 99 Wis. 300.

The reasonableness of that construction is fully realized when one considers, as the fact is, that the action for a death loss to a surviving relative is not a right by survivorship to the claim which existed in favor of the injured person in his lifetime. If that right of action exist at all, it is for the benefit of the estate under the statute, to be hereafter considered under the .second point made by appellant. The death loss act of the English statute (9 & 10 Vict. 93), commonly called “ Lord Campbell’s Act,” and the various laws of a similar kind that have been modeled after it, gave a new cause of action unknown to the common law, for the benefit of certain designated classes of surviving relatives. Such relatives do not take the cause of action for damages to the deceased by transfer to them by operation of law, or otherwise, but are enabled by statute to recover the pecuniary loss to themselves caused by the wrongful taking off of the decedent, the continuation of whose life would have been beneficial to them. As was said by Mr. Justice Orton in Topping v. St. Lawrence, 86 Wis. 526, the action accrues to the surviving beneficiary mentioned in the statute by reason of the death of the injured person caused by the wrongful act of another. It is strictly not proper to say that it is a cause of action which survives; it is rather a new action by secs. 4255 and 4256, which can be brought, not for the benefit of the estate, but solely for the benefit of the beneficiaries named in the statute.

Counsel’s contention is that the liability is made absolute by sec. 4255, and therefore is not limited by the following section which designates who shall be the beneficiaries. As before indicated, that question has long been foreclosed in this court, contrary to counsel’s contention; nevertheless, if the question were now presented for the first time, in view of the fact that the section giving the right is coupled with the section for its enforcement, it would appear to be a very plain proposition that such remedy is exclusive and necessarily limits the right to those for whose benefit it may be enforced, i. e. to the particular beneficiaries named and in their order, that is, husband or widow, if there be such, otherwise lineal descendants, and, in default of such, lineal ancestors.

On the question of whether a cause of action for injury to the person survive to his personal representative in case death ensue therefrom, this court held in the affirmative in Lehmann v. Farwell, 95 Wis. 185, construing what is now sec. 4253, Stats. 1898, which provides generally that actions for the recovery of damages to the person shall survive. The subject there received most careful consideration, and no reason is perceived now for changing the ruling there made.

The learned counsel for respondent contend, with much learning, that the section last referred to, and secs. 4255 and 4256 of the statutes, giving a right of action to relatives in certain circumstances specified, should be construed together, so as to limit actions that survive under sec. 4253 to cases where death does not ensue from the injury. That claim has the merit of being supported by decisions elsewhere under similar laws, but, looking only to the language of the statutes, no good reason is perceived for resorting to construction at all to determine their meaning. The language seems too plain to allow that. We have not even good reason for saying, as some courts have, that the statutes were enacted at the same time, or went into effect at the same time, and it is therefore unreasonable to hold that the legislature intended to give two rights of action at the same time for one injury. The law of this state conferring upon suri viving relatives the right to recover their pecuniary loss caused by the wrongful taking off by death of a husband, wife, child, father, or mother, has existed for over forty years, while the law reviving the right, in favor of the personal representatives of a deceased person,- to his claims for damages to his person, was not enacted till 1887. But independent of that circumstance, as before observed, the language of the two provisions is plain. They refer to entirely distinct losses recoverable in different rights,— the one in the right of the deceased for the loss occasioned to him; the other in the right of the surviving relatives for the loss to them. Both are dependent on the injury, but only one dependent on the death with surviving relatives to take under the statute. The language of one provision is that “ actions-for personal injuries shall survive,” and of the other, “ in case of the death of a person by the wrongful act of another,” under certain circumstances named, the wrongdoer “shall be liable to an action for damages notwithstanding the death of the person injured, if the death be caused in this state.” The only condition of the right of action in the former case is the existence of the actionable claim for damages at the time of the death of the injured party. The statute creates no new liability, but prevents the lapsing by death of an old one. The only condition of liability under the other provision is the existence of an actionable claim in the right of the injured party at the time of his death and the existence of the beneficiaries mentioned in the statute. The liability of the wrongdoer,' while dependent on the condition named, is not on the actionable claim called for to satisfy such condition, but on a new right created by the statute,— the right of the surviving relatives to compensation for the loss which falls upon them. The language of the statutes, when viewed in the light of the evident legislative purpose, is too plain to justify courts in interpolat ing into them language not there by necessary implication from the context, in order to make them accord with the ideas of judges as to the best legislative policy. The judicial function, we need not say here, does not extend so far. It calls for a firm adherence to the law as written, if valid, without regard to individual opinions as to its being good or bad. In this we do not intend to suggest that the law in question, as construed here, is a bad law. On the contrary there appears to be much wisdom in providing that a person who wrongfully causes a personal injury to another, shall not profit by that other’s death, so far as actual damages go, either to the deceased person or to the wife, husband, or lineal descendants or ancestors of such person.

True, as claimed by the learned counsel for respondent, and before indicated, several courts, for whose judgment we entertain high regard, in construing similar statutes have decided that the right of action to surviving relatives is exclusive, and that the personal injury action that survives under sec. 4253 does not include those where death ensues from the injury. A good example, among others cited in counsel’s brief, is Holton v. Daly, 106 Ill. 131. That learned court reasons that there is but one ground of liability,— the wrongful act; and as all claims for damages grow out of the one wrong it is unreasonable to say the legislature intended there shall be two causes of action based upon it; that the more reasonable view is that the act making causes of action for personal injuries survive should be considered as referring to a special class of actions, not included in those named in the general provision giving a right of action to surviving relatives; that without that construction there would be a repugnance between the .two provisions. The fallacy of that reasoning is easily apparent. True, in the circumstances named, there is but one wrongful act, but that is not the sole ground of action in the right of the deceased or the survivor. It takes the wrongful act and the loss to make the complete cause of action, and. as the loss to the person upon whom the injury is inflicted must be recovered by or in his right, and the loss to the surviving relatives by or in their right, the causes of action are clearly distinct. It does not require, apparently, much clearness of mental perception to discover that if several persons are made to suffer pecuniary loss by one wrongful act, each may very properly have his independent cause of action and remedy for the loss resulting to him, and that, generally, in order to do complete justice, in the absence of some provision for a recovery for the benefit of all and a distribution of the proceeds, separate causes of action must necessarily exist.

The views of the Illinois court accord with the judgment of the supreme court of Kansas. McCarthy v. C., R. I. & P. R. Co. 18 Kan. 46; Eureka v. Merrifield, 53 Kan. 794; Martin v. M. P. R. Co. 58 Kan. 475. It is significant that the former treats the act for the survivorship of the right to recover damages to the deceased for the benefit of his estate as a special provision, and that for the benefit of surviving relatives as a general act, and that, giving them a literal interpretation, they are repugnant to each other in part; while the latter reverses the situation, treating the act of the claim for damages to the deceased as general, and that for the benefit of surviving relatives as special, the latter being intended to take away the right of survivorship for the benefit of the estate, which would otherwise be given by a literal reading of the former provision. The fallacy of both processes of reasoning grows out of a failure to observe the distinction between the wrong and the resulting loss; that though there be but one wrongful act and one physical injury, there may be several persons that suffer distinct losses, some of which are actionable at common law and some actionable dependent on the statute. Justice BeeweR, who was a member of the Kansas court at the time the first decision there was rendered, and concurred in it, referring to the subject when be was later called upon, to consider the matter as a member of the Federal bench, in the case of Hulbert v. Topeka, reported in 34 Fed. Rep. 510, said, substantially, tbat be doubted the correctness of bis former opinion, and followed it only in deference to the settled judicial policy of Kansas, the cause being one tbat arose there; that the basis of recovery under the two provisions of law under consideration, the one for the benefit of the estate oí the decedent and the other for the benefit of bis surviving relatives, are entirely distinct, the former being based on survivorship of the claim of the deceased, taking no nóte of the pecuniary loss to relatives, and the other on survivorship of relatives mentioned in the statute, taking no note of damages to the decedent; tbat the latter proceed regardless of whether the death was instantaneous or followed after months of pain and suffering, being damages to relatives by death to be measured by their pecuniary loss caused thereby; while the former is for loss tbat would otherwise be a permanent injury to the estate itself. For further illustrations of the distinction, the following in Mr. Justice Wilson’s opinion in Needham v. G. T. R. Co. 38 Vt. 294, is quoted by Justice Brewer: “ The principles on which the intestate’s cause of action rested at common law are the same, irrespective of the cause of bis death.” It “ died with bis person but is revived by the statute in favor of bis administrator.” It includes “nothing more than bis intestate’s cause of action. The statute simply revives but does not enlarge the common-law right of the intestate.” The provision for surviving relatives “introduced principles wholly unknown to the common law, namely, tbat the value of a man’s life to bis wife and next of kin constitutes a part of bis estate.” “ Such damages to the widow and next of kin begin where the damage of the intestate ended, viz. with bis death.”

The weakness of the theory that the action for injuries to the person, which survive, includes only those not covered by the statute for the benefit of surviving relatives, is further illustrated by the fact that courts adhering to that view uniformly refer to Read v. G. E. R. Co. L. R. 3 Q. B. 555. The decision there is only to the effect that if an injured person have satisfaction of bis claim before death, the subsequent death from the injuries does not confer a light of action upon surviving relatives; that such right exists only where there is an injury to a person and there is an existing claim for damages therefor at the time of his death. Justice Blackburn, who delivered the opinion, said, in substance, that the proper construction of the statute is that it gives a right of action to certain surviving relatives of a person when death was caused by the wrongful act of another, where he had not received satisfaction in his lifetime, and that to go further would be straining the language of the law. That seems plain. The language of our statute is that liability of the wrongdoer exists where the deceased could have recovered if death had not ensued. That clearly excludes the idea that where the decedent receives satisfaction for his injuries, the conditions requisite to the right of surviving relatives may exist notwithstanding. There is nothing in Read v. G. E. R. Co., in conflict with Blake v. Midland R. Co. 10 Eng. Law & Eq. 443, where, in á very instructive opinion by Coleridge, J., it is said that Lord Campbell’s act does not transfer to the surviving relatives mentioned the claim for damages previously possessed by the deceased, but gives to them an independent cause of action for damages peculiarly incident to their relation to the deceased. The two cases are often cited to opposite views, but are in fact, when correctly understood, in perfect harmony. The one holds that the right of the relatives named in the statutes is separate and distinct from that possessed by the deceased; the other, that the right of the relatives is contingent on the death of the injured person without having satisfied his claim for damages.

"With proper regard for the argument of the learned counsel for respondent, we cannot well close this discussion without some review of the decision of the supreme court of Rhode Island in Lubrano v. Atlantic Mills, 19 R. I. 129, which is cited to our attention with great confidence. The case expressly holds with the Illinois court and the Kansas court, that the statute giving the right of action to personal representatives of a person wrongfully killed, for the benefit of certain relatives named, is exclusive. The case does not throw any new light on the subject under consideration, except as to the inherent weakness of the reasoning indulged in to support the theory which the distinguished court adopts. Read v. G. E. R. Co., supra, is cited without perceiving, apparently, that, as before indicated, it only holds that where the claim of the deceased person is extinguished, one of the conditions requisite to the cause of action for damages under Lord Campbell’s act is impossible, therefore statutes on that subject have no office to perform; that it has no bearing on the question of whether, in the absence of such extinguishment, there are two rights or causes of action for distinct and separate losses. Again, the learned court falls into an error heretofore mentioned, in referring to the two statutes as one being general and the other special, and that the two in part refer to the same subject, viewing the liability of the wrongdoer as entire merely because based on a single wrong. As we have seen, each treats of a distinct species of loss, and for that is general. There is no question of repugnancy or implied repeal of one provision by another on the same subject, or the substitution of one right for another, to he considered, if we give effect to the plain reading of the law and not attempt to vary it because of consequences which to some minds may appear to throw unreasonable burdens upon the wrongdoer. It must be presumed that the legislature had all these matters in mind, and from its judgment there is no appeal.

The Rhode Island court, further discussing the subject, speaks of the right of survivorship as a mere remedy given as a substitute for that which existed in the right ,of the decedent. Here again, there is a confusion between rights and remedies. To say that sec. 4255 of our statutes gives a remedy for the one that at common law lapsed with the death of the decedent, is to say that it gives a new remedy for a pre-existing right. Rut there was no such pre-existing right of the surviving relatives to recover their loss caused by the wrongful death. The right or cause of action itself is new, and the remedy to enforce it as well, as observed, in effect, in Topping v. St. Lawrence, 86 Wis. 526. The court further, in support of its decision, refers to Needham v G. T. R. Co. 38 Vt. 300, stating that the Vermont court later, in Legg v. Britton, 64 Vt. 652, overruled its former judgment on the subject of whether there were two causes of action in the circumstances under discussion. A careful reading of the opinion in the later Yermont case, discloses the fact that it is there held, in perfect harmony with the early case, that two causes of action exist,— one in the right of the estate, and the other in the right of the surviving relatives where the cause of action of the deceased is not extinguished before his death. The court said that the extinguishment of the cause of action in the right of the deceased was a bar to that in favor of the surviving relatives. There, the action for damages to the injured person was brought in his lifetime and prosecuted to judgment and satisfaction after his death, and the court said that under such circumstances the right of the deceased was extinguished with the same effect as if satisfaction had occurred before death, therefore that the circumstances requisite to the application of the statute, giving the right of action to the widow and next of kin, did not exist. Using substantially the language of the court: there was left no proper office for the act for the benefit of the widow and next of kin to perform.

There are many other cases bearing on the subject before us, but they do not add anything to what has been said, or call for further discussion, so we shall not further extend this opinion by referring to them. "We are well satisfied that sec. 4253 preserves for the benefit of the estate of a deceased person the cause of action possessed by him in his lifetime for an injury resulting in his 'death, and that it is not affected in any way by the other right or cause of action given by secs. 4255 and 4256 to his surviving relatives to recover for the loss sustained by them; that such is the plain meaning of the statutes, and that if the language used were open to construction at all, the view we have adopted is supported by far the better reasoning and the greater weight of authority. The supreme court of Michigan, in Hurst v. Detroit City R’y, 84 Mich. 539, quite recently had the same subject under consideration, with the same result at which we have arrived. That court said, in effect, that a pecuniary loss sustained by a surviving relative resulting from a wrongful death, recoverable under the statute, is one thing; and that damages for the injury to the deceased is another; and that a recovery for the former is no bar to an action for the latter.

Of course, there is no question as to whether a recovery on one claim will bar an action for the other; therefore, what is said should not be taken as deciding that question. We have referred to cases holding that a satisfaction of a claim in the right of the estate leaves the statute giving the other right of action no office to perform, merely in support of the position that the two statutes deal with separate and distinct rights.

The complaint demurred to, by sufficient allegations, shows that plaintiff’s intestate was injured by actionable negligence of the defendant, and that he lived thereafter some period of time. The length of time he survived the injury is not stated and is not material except as to the damages recov erable, and that does not go to the cause of action. Bancroft v. B. & W. R. Corp. 11 Allen, 34; Hollenbeck v. Berkshire R. Co. 9 Cush. 478; Tully v. Fitchburg R. Co. 134 Mass. 499; Chandler v. N. Y., N. H. & H. R. Co. 159 Mass. 589; Corcoran v. B. & A. R. Co. 133 Mass. 507; Kellow v. C. I. R. Co. 68 Iowa, 470, 21 Am. & Eng. R. Cas. 485. Within the principles stated the complaint states one cause of action, and that for the recovery of damages which the deceased sustained and which he might have recovered for had he lived. Therefore the decision of the trial court sustaining the demurrer to the complaint must be reversed.

By the Court.— The order appealed from is reversed, and the cause remanded for further proceedings according to law.