Summary
In Catchings, the supreme court specifically held that slander does not survive the death of either the wrongdoer or the person injured.
Summary of this case from Bissette v. Univ. of Miss. Med. Ctr.Opinion
No. 32762.
May 24, 1937.
1. LIBEL AND SLANDER.
The survival of libel action after death of plaintiff must be by force of a sufficient statute, since at common law causes of action for slander or libel do not survive death of either wrongdoer or person injured.
2. LIBEL AND SLANDER.
Term "personal action" as used in statute providing that, where either of parties to "personal action" shall die before final judgment, executor or administrator may prosecute or defend such action, does not include an action of slander, so as to entitle administratrix to continue the action, since statute, being in derogation of common law, must be strictly construed (Code 1930, sec. 1714).
3. CONSTITUTIONAL LAW. Statutes.
Where statute providing that, if either of parties to any personal action shall die before final judgment, executor or administrator of deceased party may prosecute or defend such action, was reenacted by Legislature without change after decision holding that term "personal action" is one brought for recovery of personalty, for enforcement of some contract or to recover damages for its breach, or for recovery of damages for commission of injury to person or property, interpretation became part of statute, and could not be changed or modified except by Legislature (Code 1930, sec. 1714).
APPEAL from the circuit court of Lincoln county. HON. J.F. GUYNES, Judge.
Williams Hunt, of McComb, and Green, Green Jackson, of Jackson, for appellant.
The sole question presented for consideration and decision here is whether or not a cause of action for the slander of the person and for the malicious attempt to destroy the business of a person survives the death of such person and whether the administratrix may be permitted to revive this cause and proceed on the merits.
The section that directly applies to the action here and that supports our contention that this cause survives, and that the administratrix should have been permitted to revive the cause and proceed on the merits, is section 1714, Mississippi Code of 1930.
The question of the survival of actions has been considered by the courts of various states and in fact has been considered in several cases in our own state, but so far as we have been able to find, our own court has not decided whether an action for slander survives or is abated by death of the plaintiff.
The courts are not uniform in their holding because of the language used in the various statutes, it being uniformly held that a cause of action for slander did not survive, but was abated, under the common law.
Citizens Southern National Bank v. Hendricks, 176 Ga. 692, 168 S.E. 313, 87 A.L.R. 230; Gallagher's Estate, 10 Pa. Dist. R. 733; Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 49 L.R.A. (N.S.) 897; 1 C.J., Secundum, sec. 132, page 178.
One of the tests of whether a cause of action survives or abates is whether it is assignable or not.
Tucker v. W.U.T. Co., 157 N.Y.S. 873, 94 Misc. 364; Woodford v. McDaniels, 81 S.E. 544, 73 W. Va. 736, 52 L.R.A. (N.S.) 1215; Hollett v. Wilmington Trust Co., 172 A. 763; Wilcox v. Bierd, 162 N.E. 170, 33 Ill. 571; State v. City, 31 P.2d 552, 167 Okla. 582.
As a general rule, assignability and survivability of causes of action are convertible terms; and such, and only such, causes of action as are assignable survive; but there are some exceptions to this rule.
Singley v. Bigelow, 291 P. 899, 108 Cal.App. 436; Columbian Nat. L. Ins. Co. v. Lemmons, 222 P. 255, 96 Okla. 228; Dowlin v. Boyd, 291 S.W. 1095; Aldridge v. Stout, 36 S.W.2d 1110; Warner v. Benham, 218 P. 260, 126 Wn. 393; Kinney v. Town, 91 S.E. 260, 79 W. Va. 463; 1 C.J., page 174, note 12; Williams v. Harris, 193 S.W. 403; Olson v. Scully, 129 N.E. 841, 296 Ill. 418; People v. Western Life Indemnity Co., 104 N.E. 219, 261 Ill. 513, Ann. Cas. 1915A 266; City of Milwaukee v. Boynton Cab Co., 231 N.W. 597, 201 Wis. 581, 229 N.W. 28; 1 C.J., page 175, note 13; Bradley v. Federal Life Ins. Co., 216 Ill. App. 602, 129 N.E. 171; Haugse v. Sommers Bros. Mfg. Co., 254 P. 212, 43 Idaho 450, 51 A.L.R. 1438.
Where a right of action is so entirely personal that the person in whom it exists cannot by contract place it beyond his control it will not survive.
72 A.L.R. 1328; 1 C.J., Secundum, page 180; Blodgett v. Greenfield, 281 P. 694, 101 Cal.App. 399; Johnston v. Savings Trust Co., 66 S.W.2d 113; Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682; Section 1713, Code of 1930; 63 C.J. 886; 26 R.C.L. 930; Wagner v. Gibbs, 80 Miss. 53; Conklin v. Railway Co., 81 Miss. 161; McNeely v. Natchez, 148 Miss. 184, 114 So. 484.
With deference, the sole extent of the rule now obtaining in Mississippi is that all demands are assignable even though they should be for a penalty, but if after assignment, the party offending should die, then the penalty would be uncollectible, not because it was not assignable, but because the criminal law does not apply to a person who is dead.
Cassedy v. Jackson, 45 Miss. 397; Hamilton v. Jackson, 127 So. 302.
Under the authorities it is our contention that Section 1714 is broad enough to, and directly permits the revival of a cause of action for slander, especially where, under Count Six of the declaration in this suit the allegation is made that there was a destruction of the business of the deceased by reason of the wrongful imputations made against Donald T. Catchings.
We, therefore, most respectfully submit that the action of the lower court was erroneous, and that this cause should be reversed and remanded with directions to revive in the name of the administratrix and permit her to proceed on the merits.
Hugh V. Wall, of Brookhaven, for appellee.
At common law an action or cause of action for libel or slander abated on the death of either party.
1 C.J. 202, par. 382; 1 R.C.L. 48, par. 47.
The appellant being without authority at common law relies upon the statutory law of Mississippi, which, with due deference, in our opinion, does not authorize appellant's position.
A decision of this case in our opinion rests solely upon the proper construction of section 1714, Mississippi Code of 1930.
A proper construction of this section of the Mississippi Code depends upon the definition and construction of two words "Personal Action." A suit for slander is not a personal action but is a suit for damages to reputation. Section 1712, Mississippi Code of 1930, provides that only personal actions survive in favor of executors, administrators, etc.
All of these statutory provisions are in derogation of the common law and must be construed strictly.
With due deference to opposing counsel, it is our opinion that this court has already decided this case in favor of the appellee in the case of McNeely v. City of Natchez, 148 Miss. 268. The court, in the McNeely case, stated: "The decision of this question turns upon the definition of the words `personal action,' used in the above quoted section. At common law, a personal action, in the absence of special statute, did not survive, against the deceased. And sections 1834 and 1836, Hemingway's Code of 1927 (which are the same as the corresponding sections in the Code of 1930) are in derogation of the common law, and must be strictly construed. It will be presumed that the Legislature used the technical words "personal action," ascribing to them their strictly technical meaning." Citing 1 C.J., page 229 to 233.
Personal actions are such whereby a man claims a debt or personal duty or damages in lieu thereof; and likewise where a man claims a satisfaction in damages for some injury done to his person or property.
Linscott v. Fuller, 57 Me. 406; Com. v. Lehigh Valley R. Co., 7 Kulp. (Pa.) 229; Forrester v. Thrasher, 9 Ont. Pr. 383; Hayden v. Vreeland, 18 Am. Rep. 723; Jones v. Townsend, 2 So. 612; 1 C.J., 932, par. 15.
A personal action is one for the recovery of personal property, the enforcement of a contract or damages for its breach, or for damages for injury to person or property.
1 C.J. Secundum, page 947, sec. 17.
Personal actions are those brought for the specific recovery of goods, chattels or damages or other redress for breach of contract, etc.
1 Am. Jurisprudence, page 430, sec. 38.
These definitions of "personal actions," defined by the recent standard authorities, American Jurisprudence and Corpus Juris Secundum, supra, are the same as set out in the old set of Ruling Case Law and Corpus Juris, quoted with approval in the McNeely case, supra, applies to sections 1712 and 1714 of the Mississippi Code of 1930, and we think preclude actions for slander and specifically and conclusively hold that slander is not a personal action, as defined by the Mississippi Code.
The state Legislature, in passing upon section 1714 of the Mississippi Code of 1930 in providing for suits that would not be abated by the death of the parties used the words "personal actions." These words were used with the full knowledge that slander was not a personal action and with the full knowledge that a slander suit would be abated by the death of the parties unless the Legislature specifically provided otherwise, and with this knowledge before them the state Legislature intentionally left a suit for slander as provided by common law, thereby refusing to provide that a suit for slander would survive.
Suits for slander have never been looked upon with great favor by the courts and law writers.
1 Am. Jurisprudence, sec. 122, page 87.
The lawmakers of Mississippi looked upon slander with disfavor in that it provided that no suit for slander could be maintained unless begun within one year after the utterance of the slander, whereas, in most other causes of action longer periods of time were given.
An action or cause of action for libel or slander abates on the death of a party unless it is within a statute providing for a survivor.
1 C.J., Secundum, page 200, sub-section D.
We submit that Mississippi has no statute providing for a survival of a cause of action for slander, and therefore Mississippi is under the common law rule which is conceded precludes a revival of the cause of action for slander after the death of either party.
1 R.C.L. 48, sec. 47; Worten v. Howard, 2 S. M. 527; McNeely v. City of Natchez, 148 Miss. 268.
Mississippi being a common law state, we are governed by the common law, unless we have some statutory provision controlling the particular subject.
Hollman v. Bennett, 44 Miss. 322.
We think that when the state Legislature restricted suits, as provided in section 1714, that would not abate to "personal action" as specifically provided that an administrator of a deceased person may prosecute, it had in mind section 24 of the Constitution and the statute means by "personal action" damages done to persons in their lands, goods and property, and it meant to exclude therefrom recovery of damages done to reputation, and if a slander action is one for the recovery of damages to a person's reputation and not to his lands, goods or person, it is clear that the statute did not intend for a suit for slander to be included in section 1714 of the Code of 1930 as a "personal action," and we think that this court has so definitely decided in the McNeely case, supra.
Jones v. Barmn, 217 Ill. 383, 75 N.E. 505; Cummings v. Byrd, 115 Mass. 346; Seale v. Schantz, 35 Hun. (N.Y.) 622.
Appellant's decedent brought an action of slander against appellee, but before the cause could be brought to trial the plaintiff died. Appellant, as administratrix of the estate of the plaintiff, sought to prosecute the cause under section 1714, Code 1930, which provides as follows: "When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator."
It is conceded, as it must be, that at common law causes of action for slander or libel do not survive the death of either the wrongdoer or the person injured, wherefore, if there be any such survival, it must be by force of a sufficient statute. The question, therefore, is whether an action of slander is within the term "personal action" as used in the above-quoted statute. In McNeely v. City of Natchez, 148 Miss. 268, 274, 114 So. 484, 487, it was held that this statute, being in derogation of the common law, must be strictly construed, and that the term "personal action" must be interpreted according to its strictly technical meaning; and the court thereupon, so interpreting the meaning, held that a personal action, under the said statute, is one "brought for the recovery of personal property, for the enforcement of some contract or to recover damages for its breach, or for the recovery of damages for the commission of an injury to the person or property."
Soon after the rendition of the opinion in that case, the Legislature revised all the general statutes of the state and adopted the Code of 1930. In the accomplishment of this revision a code commission had been previously appointed, by whom a dummy code, so called, was prepared, printed, and furnished to every member of the Legislature prior to the convening of the session. In this dummy code each section was annotated, so as to furnish the members of the Legislature in the work of revision, as well as to all others after the final adoption of the Code, definite citations to the decisions of this court which had theretofore construed the respective sections, giving also in a brief manner the gist of the several decisions. In the annotations to the section above quoted, the decision of this court in the McNeely Case and what it had held in regard to the interpretation of the term "personal action" was brought directly to the attention of the Legislature. The section was reenacted by the Legislature without change, from which it follows that the said interpretation has now become a part of the statute itself, and may not be changed or modified except by the Legislature.
It only remains to be added that the action of slander is not a personal action within the strict interpretation which the statute must now receive, and that the trial court was correct in dismissing the case.
Affirmed.