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Logan, Admr. v. Durham

Supreme Court of Mississippi
May 13, 1957
95 So. 2d 227 (Miss. 1957)

Summary

In Logan, the Supreme Court of Mississippi held that the administrator of the decedent's estate could not maintain a wrongful death action on behalf of the decedent's parents and siblings because the decedent had been survived by both a spouse and an unemancipated minor child.

Summary of this case from Johnson v. Med Exp. Ambulance Service, Inc.

Opinion

No. 40368.

May 13, 1957.

1. Death — remoter class of beneficiaries entitled to maintain action under wrongful death action only if deceased was not survived by member of preferred class — benefits of statute not extended to remoter class where preferred beneficiary disqualified from bringing action.

Where wife died of injuries sustained in automobile accident due to alleged negligence of husband, action could not be maintained against husband under wrongful death statute by or on behalf of father and mother and sisters of wife, the remoter class of beneficiaries under such statute, where preferred beneficiary, the unemancipated minor child of wife and husband, was disqualified from bringing wrongful death action, in view of express provisions of statute to the effect that the remote class of beneficiaries is entitled to maintain action only if deceased was not survived by a member of the preferred class. Sec. 1453, Code 1942.

2. Death — wrongful death statute — court not justified in extending application of statute beyond its terms.

Since wrongful death statute created an action unknown to common law, court is not justified in extending its application beyond its terms. Sec. 1453, Code 1942.

Headnotes as approved by Gillespie, J.

APPEAL from the Circuit Court of Coahoma County; E.H. GREEN, Judge.

Roberson, Luckett Roberson, Clarksdale, for appellant.

I. The suit on behalf of the child was dismissed on the ground that such a suit is not maintainable by a child against her father. On appeal to this court the judgment of the Lower Court was affirmed, on the same ground as that advanced by the Trial Court. Durham v. Durham, 227 Miss. 76, 85 So.2d 807.

II. There can be no question but that appellant has stated a cause of action against appellee. He has shown in his declaration that the death of Justine Evelyn Durham was caused by the negligent acts of appellee and that the deceased was survived by her husband, her daughter, her mother, her father, and her four sisters. That makes out a case against appellee under our wrongful death statute. Sec. 1453, Code 1942.

III. The first of the two conditions in the statute is met by showing that deceased's death was caused by appellee's negligent acts. That is true even though deceased, as the wife of appellee, could not have maintained an action for her injuries had not death ensued therefrom. That fact does not preclude an action against the tort-feasor for the wrongful death of his wife. Deposit Guaranty Bank Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476; Durham v. Durham, supra.

IV. The only other condition in the statute is that the deceased must have left a widow or children or both, or husband or father or mother, or sister, or brother. Since in this case, the deceased left a husband, a child, a mother, a father, and several sisters, such condition is also fulfilled.

V. The former suit, decided, as it was, on the point that the plaintiff therein was disqualified to prosecute it, is no bar to this suit. Agnew v. McElroy, 10 Sm. M. 552; Mosby v. Wall, 23 Miss. 81; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; Sutberry v. Meridian Fertilizer Factory, 106 Miss. 744, 64 So. 723; Sec. 1453, Code 1942; Freeman on Judgments, Sec. 738.

VI. The beneficiaries in this suit are different from the beneficiary in the former suit.

VII. Every person, including appellee, who causes the death of another by his negligent act is liable for the damages specified in our wrongful death statute. Gordon v. Lee, 208 Miss. 21, 43 So.2d 665; Sec. 1453, Code 1942.

VIII. The members of the remoter or deferred class of beneficiaries under wrongful death statute are entitled to bring suit for wrongful death if members of preferred class are disqualified to bring such suit. Apitz v. Dames (Ore.), 287 P.2d 585; Deposit Guaranty Bank Trust Co. v. Nelson, supra; Folk v. United States, 102 F. Supp. 736; Gholson v. Smith, 210 Miss. 28, 48 So.2d 603; Lytle, Admr. v. Southern Railway, 171 S.C. 221, 171 S.E. 42, 90 A.L.R. 915; Missouri-Kansas-Texas R. Co. v. Canada, Admr., 130 Okla. 171, 265 P. 1045, 59 A.L.R. 743; Nosser v. Nosser, 161 Miss. 636, 137 So. 491; Pries v. Ashland Home Telephone Co. (Wis.), 128 N.W. 281; 45 U.S.C.A., Sec. 51; Secs. 479, 672, 1453, Code 1942.

Brewer Brewer, Wm. O. Luckett, Wm. H. Beck, Jr., Clarksdale, for appellees.

I. The wrongful death statute is in derogation of the common law and must be strictly construed in favor of the appellee. Boroughs v. Oliver, 217 Miss. 280, 65 So.2d 338; Burns v. Allen, 202 Miss. 240, 31 So.2d 125; Durham v. Durham, 227 Miss. 76, 85 So.2d 807; Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So.2d 791; Houston v. Holmes, 202 Miss. 300, 32 So.2d 138; Jackson v. Wallace, 189 Miss. 252, 196 So. 223; Sanders v. Neely, 197 Miss. 66, 19 So.2d 424; Sec. 1453, Code 1942; McCormick, Damages, Sec. 93.

II. There can be but one suit under the wrongful death statute for the death of a decedent. This Court has previously decided, on its merits, a suit under the wrongful death statute for the death of this decedent. American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598; Art Metal v. United States, 13 F. Supp. 756; Brodt v. Duthie, 97 Ind. App. 692, 186 N.E. 893; Candate v. State, 196 Miss. 711, 18 So.2d 441; Durham v. Durham, supra; Foster v. Hicks, 93 Miss. 219, 46 So. 533; Gulf S.I.R. Co. v. Bradley, 110 Miss. 152, 69 So. 66; Haney v. Neace, 109 Or. 93, 219 P. 190; Hewlett v. George, 68 Miss. 703, 9 So. 885; Hirschback v. Kitchum, 81 N.Y.S. 957, 40 Misc. 306; Kelly v. Howard, 98 Miss. 543, 54 So. 10; Lankford v. Hutton, 78 Ga. App. 632, 51 S.E.2d 687; Mississippi v. Brown, 188 Miss. 483, 195 So. 465, 127 A.L.R. 919; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Mize v. Mize, 80 Ga. App. 441, 56 S.E.2d 121; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Nosser v. Nosser, 161 Miss. 636, 137 So. 491; Ostlund v. Ecklund, 42 N.D. 83, 171 N.W. 857; People v. Lyman, 65 N YS. 1062, 53 App. Div. 470; Pickens v. Illinois Central R.R. Co., 92 Miss. 210, 45 So. 868; Schnarr Co. v. Virginia Carolina Chemical Co., 118 Fla. 258, 159 So. 39; Seward v. Denver R.G.R. Co., 17 N.M. 557, 131 P. 980; Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; State v. Roell, 192 Miss. 873, 7 So.2d 867; Straw v. Illinois Central R.R. Co., 73 Miss. 446, 18 So. 847; Sutberry v. Meridian Fertilizer Co., 106 Miss. 744, 64 So. 723; Thames v. State of Mississippi, 117 F.2d 949; Weathersby v. Pearl River Lbr. Co., 88 Miss. 535, 41 So. 65; Wolfe v. Georgia Ry., 6 Ga. App. 410, 65 S.E. 62; Sec. 1453, Code 1942.

III. The members of a deferred class of beneficiaries under the wrongful death statute are not entitled to bring suit or recover damages for wrongful death if the members of the preferred class are in existence. Apitz v. Dames, 287 P.2d 585; Barker v. Hannibal, 91 Mo. 86, 145 W. 280; Blackburn v. Louisiana Railway Navigation Co., 128 La. 319, 54 So. 865; Clements v. Pollard (Ga.), 186 S.E. 587; Cole v. Mayne, 122 Fed. 836; Demos v. Freeman, 183 N.E. 395; Deposit Guaranty Bank Trust Co. v. Nelson, 212 Miss. 335, 54 So.2d 476; Dillier v. Cleveland, 34 Ind. App. 52, 72 N.E. 271; De Paolo v. Loquin Lbr. Co., 178 Fed. 877; Durham v. Durham, supra; Doucet v. Travelers Ins. Co., 91 F. Supp. 864; Evans v. Shanklin (Cal.), 60 P.2d 554; Folk v. United States, 102 F. Supp. 736; Hammond v. Lewiston, 106 Me. 209, 76 A. 672; Lytle, Admr. v. Southern Railway, 171 S.C. 221, 171 S.E. 42; March v. Western N.Y. Pa. Ry., 204 Pa. 229, 53 A. 1001; McIntosh v. Mo. Pac., 103 Mo. 131, 15 S.W. 80; Missouri-Kansas-Texas R. Co. v. Canada, Admr., 130 Okla. 171, 265 P. 1045; New Orleans N.E. Ry. v. Harris, 247 U.S. 367; Ondrey v. Shellmar Products Corp. 131 F. Supp. 542; Pries v. Ashland Home Telephone Co., 128 N.W. 281; Register v. Harrell, 131 La. 983, 60 So. 638; Ross v. Robinson, 174 Or. 25, 147 P.2d 204; Sabine Towing Co. v. Brennan, 85 F.2d 478; Shipley v. Daly (Ind.), 20 N.E. 653; Spark v. Kansas City, 31 Mo. App. 111; Thompson v. Chicago, M. St. R.R. Co., 104 Fed. 845; Van Beck v. Sabine Towing Co., 300 U.S. 342; Anno. L.R.A. 1916E p. 132; 17 C.J., Death, Sec. 61 p. 1214; 25 C.J.S., Death, Sec. 34 p. 1112.

APPELLANT IN REPLY.

217 Miss. 280 64 So.2d 338208 Miss. 2143 So.2d 665196 Miss. 45217 So.2d 791138 Miss. 296103 So. 86

II. The former suit, decided, as it was, on the point that the plaintiff therein was disqualified to prosecute it, was not decided on its merits. Alabama V. Ry. Co. v. McCerren, 75 Miss. 687, 23 So. 423; Gulf S.I.R. Co. v. Bradley, 110 Miss. 152, 69 So. 66; R.M. Kelly, Sheriff, v. Howard, 98 Miss. 543, 54 So. 10; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Nosser v. Nosser, 161 Miss. 636, 137 So. 491; State ex rel Rice v. Stewart, 184 Miss. 202, 184 So. 44; Thames v. Mississippi, 117 F.2d 949; Freeman on Judgments (5th Ed.), Sec. 745.

III. The members of the remoter or deferred class of beneficiaries under wrongful death statute are entitled to bring suit for wrongful death if members of preferred class are disqualified to do so. Apitz v. Dames, 287 P.2d 585; Cole v. Mayne, 122 Fed. 836; Demos v. Freeman, 183 N.E. 395; De Paolo v. Loquin Lbr. Co., 178 Fed. 877; Dillier v. Cleveland, 34 Ind. App. 52, 72 N.E. 271; Doucet v. Travelers Ins. Co., 91 F. Supp. 864; Evans v. Shanklin, 60 P.2d 554; Folk v. United States, 102 F. Supp. 736; Hammond v. Lewiston A. W. St. Ry., 106 Me. 209, 76 A. 672; Lytle, Admr. v. Southern Railway, 171 S.C. 221, 171 S.E. 42, 90 A.L.R. 915; March v. Western N.Y. Pa. Ry., 204 Pa. 229, 53 A. 1001; Missouri-Kansas-Texas R. Co. v. Canada, Admr., 130 Okla. 171, 265 P. 1045; 59 A.L.R. 743; Ondrey v. Shellmar Products Corp., 131 F. Supp. 542; Pries v. Ashland Home Telephone Co., 128 N.W. 281; Register v. Harrell, 131 La. 983, 60 So. 638; Ross v. Robinson, 174 Or. 25, 147 P.2d 204; Sabine Towing Co. v. Brennan, 85 F.2d 478; Thompson v. Chicago, M. St. P.R. Co., 104 Fed. 845.


This suit was brought under the wrongful death statute. The trial court dismissed the action and plaintiffs appeal.

Mrs. Justine Evelyn Durham, wife of W.M. Durham, appellee, died of injuries sustained in an automobile accident due to the negligence of appellee. Mrs. Durhas was survived by her husband, the appellee, and one unemancipated minor child, Deborah Claudine Durham. In a previous suit, the minor child brought an action against her father upon the wrongful death statute, which suit was dismissed by the trial court, and this Court affirmed, holding that an unemancipated minor child could not sue its parent in tort, Durham v. Durham, 85 So.2d 807. The present action was brought by the administrator of the estate of Mrs. Justine Evelyn Durham in behalf of the father and mother and four sisters of the deceased. It is contended that since this Court held that the minor child could not maintain an action, the action is maintainable by or on behalf of the father and mother and four sisters of the deceased.

(Hn 1) The question for our decision is whether the remoter class of beneficiaries under the wrongful death statute may recover because the preferred beneficiary, the unemancipated minor child of the deceased and the tort feasor, is disgualified to maintain the action. Our wrongful death statute, Section 1453 of the Mississippi Code of 1942, as amended, provides in part as follows:

"Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover."

(Hn 2) The recovery provided by the wrongful death statute was unknown to the common law. The statute provides that if the deceased had no husband or child, the damages shall be distributed equally to the father, mother, brothers and sisters. In this case, the deceased was survived by her husband, the tort feasor, and an unemancipated minor child. The husband, being the tort feasor, cannot recover and this Court has held that the unemancipated minor child may not maintain the action against her father. No one is left in the preferred class of beneficiaries qualified to maintain the action. Under the express terms of the statute, the remoter class of beneficiaries is entitled to the damages only if the deceased was not survived by a member of the preferred class. The legislature did not provide for the distribution of the avails of the suit to the remoter class of beneficiaries when those in the preferred class are disqualified to maintain the action. Since the state created an action unknown to the common law, we are not justified in extending its application beyond its terms. Moreover, we are not prepared to say that the rule sought by appellants would serve the best interest of the preferred class. If the remoter class of beneficiaries is allowed to recover, the judgment could be enforced against the father of the minor child and take from him the means of supporting the preferred beneficiary; or, if the father died before collection of the judgment, it could be collected from his estate, which would mean that the minor child, the preferred beneficiary, could be made to pay the judgment out of her inheritance. If such a rule should be adopted, and the child had been killed in this case instead of the mother, the mother could not have maintained the action, Emsinger v. Emsinger, 222 Miss. 799, 77 So.2d 308, in which case the judgment could be collected from the husband to the obvious detriment of the wife, the preferred beneficiary. It will at once be seen that the rule sought by appellant could harm rather than help the preferred class of beneficiaries. Limited to the particular fact situation here involved, we hold that remoter beneficiaries may not maintain the action.

We have given consideration to all parts of the statute, including the first sentence, which appellants contend makes the wrongdoer liable in all cases. We have also examined all of the cases from other jurisdictions cited by the parties, none of which involve the same fact situation here confronting the Court. Appellant's case has been ably presented and has received the consideration due a novel question.

Affirmed.

All Justices concur, except McGehee, C.J., who took no part.


Summaries of

Logan, Admr. v. Durham

Supreme Court of Mississippi
May 13, 1957
95 So. 2d 227 (Miss. 1957)

In Logan, the Supreme Court of Mississippi held that the administrator of the decedent's estate could not maintain a wrongful death action on behalf of the decedent's parents and siblings because the decedent had been survived by both a spouse and an unemancipated minor child.

Summary of this case from Johnson v. Med Exp. Ambulance Service, Inc.
Case details for

Logan, Admr. v. Durham

Case Details

Full title:LOGAN, ADMR. v. DURHAM

Court:Supreme Court of Mississippi

Date published: May 13, 1957

Citations

95 So. 2d 227 (Miss. 1957)
95 So. 2d 227

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