In Bloss v. Dr. C.R. Woodson Sanitarium Co., 319 Mo. 1061, 5 S.W.2d 367, 368 (1928), this court declared that "the wrongful death statutes confer a cause of action ex delicto, not one ex contractu". Plaintiffs admit and plead that decedent's injuries from beatings resulted in his death.Summary of this case from Stiffelman v. Abrams
April 11, 1928.
1. ACTION: Based on Death: Ex Contractu. By the common law no civil action lies for an injury which results in death. At common law the death of a human being gave rise to no civil action, in favor of any person, under any circumstance. And the rule applied to actions ex contractu, as well as to actions ex delicto.
2. ____: ____: Breach of Contract. A civil action for damages by a wife against a hospital, based upon the breach of the hospital's contract with her, to guard and care for her husband and to protect him from the dangers incident to his disease, a nervous malady accompanied by suicidal tendencies, which breach and neglect resulted in his wandering away unattended and the hanging of himself to a tree, did not exist at common law, and cannot be maintained unless authorized by statute.
3. ____: ____: Tort. The doctrine in this State is that the wrongful death statutes confer a cause of action ex delicto, not one ex contractu.
4. ____: ____: Limitations. Under the statute (Sec. 4221, R.S. 1919) an action to recover for the death of a human being must be brought within one year after the death of such person; otherwise, it is barred by limitations.
Corpus Juris-Cyc. References: Death, 17 C.J., Section 36, p. 1181, n. 3; Section 49, p. 1199, n. 7; Section 54, p. 1204, n. 59; Section 83, p. 1235, n. 77.
Appeal from Buchanan Circuit Court. — Hon. Samuel Wilcox, Judge.
Dort Witte and Eastin McNeely for appellant.
(1) There is no ancient principle of law prohibiting, under all circumstances, a civil action for the death of a human being. Grotius Lit. 2, C. 17; Ruth. Inst. Nat. Law, Book 17-19; Poffendorf, Law of Nations 3, C.I. sec. 7. (2) Under the early common law there could be no recovery for death through murder; but this was not because such an action grew out of the death of a human being. It was because in every wrong resulting from crime, the private wrong was drowned in the offense against the crown. Higgins v. Butcher Yelve, 90 Reprint 61 (4th Year of King James, 1607); See also 1 Bacon's Abridgment, p. 663 (6 London Ed.) "Actions on the Case." Also, Baron Comyns's Digest under the head, "Actions on the Case." (3) There was also a principle of common law, summarized in the maxim, " Actio personalis moritur cum persona," under which a personal action of, or against, a person, died with the person, and could not be brought by or against his representatives; but this was held not to apply to a deceased party to a breached contract. Bacon's Abridgment under the head of Executors and Administrators — "Of personal torts which are said to die with the party," Lord Coke and associates in Pinshon's Case (1612) in which is cited many ancient precedents, 3 Bacon's Abridgment, supra, pp. 98, 99; Pinchon's Case (9th Year James 1st B.R.); Sir Edward Coke's Reports, Part 8, p. 86; 5 Wilson's Ed. 86.; 13 Am. Eng. Ency. Law, 668, note 2. This rule of actio personalis moritur cum persona having been held not to apply to a deceased party to a breached contract, Lord ELLENBOROUGH, in the early part of the last century (1800) in the case of Baker v. Boulton (a tort action by a husband for the killing of his wife in an overturned stage coach) called attention to the fact that this ancient principle still applied in tort cases. Baker v. Boulton, 1 Camp. 495. The English and American Courts followed the case of Baker v. Boulton, which became a leading case, and towards the middle of the last century the British Parliament (and afterwards most of the American states) passed what is known as the Lord Campbell Act, ameliorating the harshness of the rule " Actio personalis moritur cum persona" as thus applied to tort actions for death. Lord Campbell Act, 9 10 Victoria, 93; R.S. 1919, sec. 4218. (4) Secs. 4218-21, R.S. 1919 (Missouri's Lord Campbell Act), creates no new cause of action, but is merely designed to continue and transmit the cause of action of deceased; that is, the statute merely continues or transmits the cause of action which the deceased had. These sections and their limitations are not applicable to the case at bar. Strode v. Transit Co., 197 Mo. 616; Hennessy v. Brewing Co., 145 Mo. 112. (5) The New York view is otherwise, i.e. that the statute (Lord Campbell Act) gives the cause of action and fixes its limitations. Hagerick v. Kiddie, 99 N.Y. 258; Duncan v. St. Luke's Hospital, 98 N.Y.S. 867; Affirmed on Appeal, 192 N.Y. 580, 85 N.E. 1109. (6) This action is for breach of an express agreement between two living parties, and moreover, sounds in contract, and not in tort. The confusion that sometimes exists as to whether an action sounds in contract or tort is due to the fact that at common law actions on the case sometimes invaded the field of assumpsit (an action for the breach of a simple or parole contract) through the fiction of an implied contract, as in the case of actions based upon a relation imposing particular duties. 1 C.J. 994. (7) The Code provides for but one form of action, and the question of whether an action sounds in contract or in tort depends upon its substance, under the clear distinction of the common law between actions on the case and ex delicto actions, on the one hand, and assumpsit and actions ex contractu on the other. Regardless of common-law forms the test still lies in the query, Was the agreement express or implied? 1 R.C.L. 332; Bliss on Code Pleading, (3 Ed.) sec. 14; Chitty's Pleading (16 Am. Ed.) 152; Stanley v. Burcher, 78 Mo. 245; Baker v. Crandall, 78 Mo. 588; Glenn v. Hill, 210 Mo. 291. See also Finch v. Bursheim, 122 Minn. 152, Burns v. Barrenfield, 84 Ind. 43; Long v. Morrison, 14 Ind. 595. (8) "The action should ordinarily be so construed as to sustain the complaint if the allegations are sufficient to state a good cause of action in contract, but not in tort, or vice versa; and so as to sustain the jurisdiction if the court would have jurisdiction in one form but not in the other." 1 C.J. 1015. (9) The New York case of Duncan v. St. Lukes Hospital, 98 N.Y. Supp., relied upon by respondents, is at variance with the basic principles and the Missouri view in another respect, i.e., it is based upon the theory that the action sounds in tort. Duncan v. St. Lukes Hospital, 98 N.Y.S. 867.
Brown, Douglas Brown for respondents.
(1) The gist of the appellant's action as revealed by her petition is the recovery of damages resulting from the death of her husband. The right to maintain such an action is not recognized at common law, and must be founded upon a statutory counterpart of the English Lord Campbell's Act. El Paso N.E. Railroad Co. v. Gutierrez, 215 U.S. 87; Clark v. Railroad Co., 219 Mo. 524; Crohn v. Telephone Co., 131 Mo. App. 313; Grunther v. Railroad Co., 1 F.2d 85; Wells v. Davis, (Mo.), 261 S.W. 58; Robbins v. Minute Tapioca Co., 128 N.E. 417; Putman v. Savage, 138 N.E. 808; Northern Pacific Railroad Co. v. Adams, 192 U.S. 440; Burk v. Railroad, 125 Cal. 364; Western Railroad Co. v. Bass, 104 Ga. 390; Malotte v. Shimmer, 153 Ind. 35; Rodman v. Mo. Pac. Railroad Co., 65 Kan. 645; Behen v. Transit Co., 186 Mo. 430; Strode v. Transit Co., 197 Mo. 616; Railroad v. Young, 58 Neb. 678; Snedeker v. Snedeker, 164 N.Y. 58; Brown v. Railroad Co., 65 S.C. 260; Gilkeson v. Railroad, 222 Mo. 173; McPherson v. Railroad, 97 Mo. 253; Barth v. Elev. Railway Co., 142 Mo. 535; Weber v. Ry. Co., 97 F. 140; Gerling v. Railroad Co., 151 U.S. 673; Bates v. Sylvester, 205 Mo. 500; Elliott v. Kansas City, 210 Mo. 581; Handtoffski v. Traction Co., 274 Ill. 282; Weber v. Railroad Co., 109 N.Y. 311; Maxon v. Railway Co., 112 N.Y. 559; Griffin v. Woodhead, 30 R.I. 204; Harding v. Liberty Hospital, 171 P. 98; 17 C.J. 1402, par. 54; Glenn v. Hill, 210 Mo. 291. (2) Appellant's only right of action existed under Sec. 4218, R.S. 1919, and that right can only be enforced in an action brought within one year from the time the statutory cause of action accrued. Sec. 4221, R.S. 1919; Clark v. Railroad, 219 Mo. 524; Gerren v. Railroad, 60 Mo. 405; Strottman v. Railroad, 228 Mo. 154. (3) The alleged contract pleaded by appellant in her petition, is not the gist of her cause of action; the contract is merely a matter of inducement, revealing a relationship between the parties, including appellant's deceased husband, and the alleged violation of whatever obligations the law imposes as a result of that relationship is the real matter in controversy. In other words, the petition reveals that whatever obligation the respondents owed under the circumstances stated in the petition, is an obligation imposed by law, which does not inhere in the contract, but exists independently of the provisions of the contract, and damages for the breach of such obligations are recoverable only in a tort action. Stanley v. Bircher, 78 Mo. 245; Duncan v. St. Luke's Hospital, 98 N.Y.S. 867; Darks v. Grocery Company, 146 Mo. App. 246; Armenlio v. Whiteman, 127 Mo. App. 698; Hales v. Raines, 163 Mo. App. 46; Reeves v. Lutz, 179 Mo. App. 61; Cooper v. Cooper, 147 Mass. 370; Pillsbury v. Title Ins. Trust Co., 175 Cal. 454; Randolph's Administrator v. Snyder, 129 S.W. 562; Lewis v. Taylor Coal Co., 112 Ky. 845; Harding v. Liberty Hospital, 171 P. 98; Marty v. Somers, 169 P. 411; Davis v. Springfield Hospital, 196 S.W. 104; Revell v. Trust Co., 322 Ill. 337; Glenn v. Hill, 210 Mo. 291. (4) The duty to pay damages resulting from a tort will not support an implied promise to pay such damages, upon which assumpsit can be maintained. Cooper v. Cooper, 147 Mass. 370; 1 C.J. 1032. (5) Whatever duties respondent owed as a result of their contract to treat and care for appellant's husband are imposed by law, and the extent of those obligations and the question of responsibility therefor are not the subject of contract. If those obligations were merely a matter of contract, as contended by appellant, it would have been competent for appellant by her contract to have relieved respondents from the consequence of failure to discharge that obligation; any such stipulation, however, would be contrary to public policy, and void. Blanton v. Dold, 109 Mo. 64; Brown v. Railroad, 227 S.W. 1069; Shohoney v. Railroad, 231 Mo. 131; Witting v. Railroad, 101 Mo. 631; McFadden v. Railroad, 92 Mo. 343.
The plaintiff widow sues for $20,000 damages for the wrongful death of her husband, who suffered from a nervous malady accompanied by a suicidal tendency or mania. While under treatment in the defendants' sanitarium he hanged himself. The dereliction charged is that the defendants failed to protect the deceased from self-destruction. The trial court sustained a demurrer to the petition and the plaintiff has appealed.
The suit was filed April 2, 1923. The petition alleged that for a consideration of $35 per week the respondents contracted with the appellant to accept custody of her husband as a patient, to provide him with living quarters and accommodations, to treat him and to guard him against the dangers incident to his disease, they then and there well knowing of his condition. The pleading then continued:
"Plaintiff further states that the defendants, in violation of their said contract with plaintiff, and contrary to the representations and promises made at the time her said husband was placed as a patient with defendants, did not guard and protect her said husband, but did, in disregard of their said obligations and of the interests of said patient, leave him unguarded, so that on the 21st day of September, 1921, the said husband of plaintiff, by reason of the neglect of defendants as aforesaid and their failure to perform their obligations as herein alleged, and by reason of their gross neglect of the said patient as aforesaid, was permitted to wander away from defendants' hospital and without attendants; that her said husband was not found until the following day, when his body was discovered hanging from a tree, where by reason of his mental condition, well known to defendants, he had destroyed his own life; that but for the failure of defendants to guard and protect said patient as they agreed, and were bound to do, said patient would not have so destroyed his own life; that by reason of the facts herein alleged, plaintiff has been damaged in the sum of $20,000, for which she prays judgment, with her costs in this behalf expended."
The demurrer set up two grounds: (1) that the petition did not state a cause of action, and (2) that the action was barred by limitation. The theory of the demurrer was that the action sounded in tort and was controlled by the provisions of the damage statutes. [Chap. 26, Art. 1, R.S. 1919.] One of these, Section 4221, requires suit to be brought within one year after the accrual of the cause of action, and it will be noted this action was not instituted until more than a year and a half after the husband's death. The appellant seeks to avoid the bar of the statute by contending the action is ex contractu and not governed by it. To that respondents rejoin that if the action is on contract the petition does not state a good cause of action, because no action for wrongful death can be maintained except under the statute.
Treating the action as one on contract, in harmony with appellants construction of the pleading, we are still clearly of the opinion that the demurrer was well ruled. In a scholarly brief counsel for appellant have traced and discussed the doctrine of the common law expressed in the maxim Actio personalis moritur cum persona, and have shown it had no application to causes of action arising in contract. Without following along the many inviting lines of inquiry suggested we may concede that is so. [See 1 R.C.L. p. 28, sec. 22.] But we are not concerned in this case with questions touching the survival of the cause of action, or the relief which may be awarded in contract actions in general. The contract pleaded was not one with the deceased. It was an engagement directly between the appellant and the respondents, and the point to be determined is whether she, as obligee, can maintain this suit on her contract for damages for his wrongful death.
The law is to the contrary. As was said in Bates v. Sylvester, 205 Mo. 493, 499, 104 S.W. 73: "At common law the death of a human being gave rise to no civil action in behalf of any person under any circumstances as has often been decided by the appellate courts of this State." To the same effect as Gilkeson v. Mo. Pac. Ry. Co., 222 Mo. 173, 185, 121 S.W. 138, where it is declared, quoting from Mobile Life Ins. Co. v. Brame, 95 U.S. 754, 756, 24 L.Ed. 580: "The authorities are so numerous and so uniform to the proposition that, by the common law, no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question." [See also 8 R.C.L. 719, sec. 15; 17 C.J. 1181, sec. 36.] Some of the cases put it that the death of a human being could not be complained of in a civil court as an injury, or that no private action (as distinguished from a criminal prosecution) for wrongful death was maintainable, but whatever the form of expression used it is not to be doubted that the rule applied to actions ex contractu as well as to actions ex delicto.
The case of Duncan v. St. Luke's Hospital, 113 A.D. 68, 98 N.Y.S. 867, affirmed, memo., 192 N.Y. 580, 85 N.E. 1109, is very similar to this. There the husband sued the defendant hospital at common law for damages for breach of its contract with him to guard his insane wife while she was in its care as a patient under treatment. Failing to do so, the wife threw herself from a window and death resulted. It was held that the husband could not recover, both because it could not "fairly be held to be within the reasonable intendment of (the) contract that the hospital agreed to pay to the husband the value of his wife's life to him in case she did commit suicide," and also because "it is settled by innumerable cases that the right to recover for the death of a human being is a right solely given by statute."
In the later case, Roche v. St. John's Riverside Hospital, 96 Misc. 289, 160 N.Y.S. 401, affirmed, memo., 176 A.D. 885, 161 N.Y.S. 1143, the administrator of an infant child sued ex contractu for the wrongful death of the child to the use of the parents under the New York Damage Act. The contract with the hospital was made by the parents. It was held the suit was maintainable, but in so holding the New York court took occasion to say its conclusion was not out of harmony with the Duncan case, supra. On the contrary, the holding in that case was recognized as sound and the decision was distinguished on the ground that there the plaintiff had failed to avail himself of the damage statute and had cast himself on the common law. And so, on the point under consideration in the instant controversy, both the Duncan case and the Roche case may be taken as authority supporting the view heretofore indicated as our own.
We confess we are unable to discern the precise line of reasoning by which the Roche case arrived at the principal conclusion that the New York damage statute will sustain an action ex contractu for wrongful death, especially on a contract to which the deceased was not a party, but whatever it is it can have no application here. In the first place, appellant does not rely on the statute, and if she did the action would be barred by limitation, as we have seen; and in the second place, contrary to the New York rule, the doctrine in this State always has been that the wrongful death statutes confer a cause of action ex delicto — not one ex contractu. Such we understand to be the effect of many decisions, like Glen v. Hill, 210 Mo. 291, 299, 109 S.W. 27, 16 L.R.A. (N.S.) 699; State ex rel. Thomas v. Daues, 314 Mo. 13, 22, 283 S.W. 51; Betz v. K.C. So. Ry. Co., 314 Mo. 390, 397, 408, 284 S.W. 455. See also 17 C.J. 1204, sec. 54; 8 R.C.L. 726, sec. 21.
The judgment is affirmed. Lindsay and Seddon, CC., concur.
The foregoing opinion by ELLISON, C., is adopted as the opinion of the court. All of the judges concur.