Collier v. Executors of Arrington , 61 N.C. 356 ( 1867 )

The facts were, that in 1861 an action of trespass was brought by the plaintiff against the deceased, Nicholas W. Arrington, to recover damages ($2,000) for the killing of her intestate. The defendant appeared, and entered pleas. Afterwards he died, and a writ of scire facias, returnable to Fall Term, 1866, was issued against his executors in order to revive the suit. To this, for cause of abatement, they pleaded the testator's death since the last continuance. To this plea there was a demurrer, and a joinder in demurrer followed. Thereupon the case was continued.

His Honor gave judgment pro forma in favor of the plaintiff, and the defendants appealed. The act 9 and 10, Vict. (of which the act upon which the original suit was here brought, Rev. Code, ch. 1, sec. 9, etc., is a copy), does not extend the remedy against the executor or administrator of the wrongdoer. Broom's Maxims, p. 710.

This is a vindictive action. Rippy v. Miller, 11 Ire., 247.

The common-law rule as to the abatement of personal actions applies here. See 1 Ch. Pl., pp. 68, 69 and 89. The statute upon which this action was brought excludes all idea ofvindictive damages. The English act from which it was taken has frequently been held to authorize only damages for actual loss, excluding solatium andsmart money. Blake v. Midland R. R., 10 Eng. L. and E., 437; S.C., 83 Com. Law, 93; Dalton v. S.E. R. R., 93 Com. Law, 296; Pyne v. Great North. R.R., 116 Com. Law., 396.

No other similar statute in the Union has the same language as ours. SeePa. R. R. Co. v. McClorky, 23 Pa., 526; Mann v. Boston W. R. R., 9 Cush., 108; Hollenbook v. Berkshire Ry., ibid., 481; Oldfield v. Harlaem R. R.Co., 14 N.Y. 310.

Therefore, under the Rev. Code, ch. 1, sec. 1, the decision below is correct. The question involved is, whether the action abates by the death of the trespasser?

An action survives against the representatives of the deceased party, except it be for "damages merely vindictive." Rev. Code, ch. 1, sec. 1.

It is insisted for the defendant that the proper construction of the statute is, that an action for trespass against the person does not abate by reason of the death of the plaintiff, but does abate by reason of the death of the defendant. The statute is as follows: No action, etc., whether at law or in equity, except suits for penalties and for damages merelyvindictive, shall abate by reason of the death of either party, etc., but the same may be carried on by the heirs, executors and administrators of the deceased party, etc.

It is insisted that, although the act is express that it shall not abate by the death of either party, yet it only provides for its being carried onby and not against the representatives; and that a suit is carried on by aplaintiff and against a defendant; and that therefore there is no provision for carrying it on against the representatives of a deceased (358) defendant. We find, by reference to the Rev. Stat., ch. 1, that it was provided that it should be carried on by or against the representatives of either party; and it seems that in transcribing the words "or against" were left out of the Revised Code. But we feel obliged to construe the statute as if the words "or against" were in it. The language is express, that it shall not abate by the death of either party. If it shall not abate, then it must be carried on. It cannot be carried on by one party without bing [being] carried on against the other party. It cannot be carried on against the person who committed the trespass, for he is dead; and, therefore, if carried on at all, it must be against his representative. The reason why, at common law, an action against a trespasser died with the person was, that it was not so much an action for pecuniary loss, as it was for a solatium for the wounded feelings of the plaintiff, and for the punishment of the defendant. But the plaintiff could not be solaced, nor the defendant punished after death. But our statute, which gives an action to the representative of a deceased party, who was injured or slain by a trespasser, confines the recovery to the amount ofpecuniary injury. It does not contemplate solatium for the plaintiff, nor punishment for the defendant. It is therefore in the nature of pecuniary demand, the only question being, how much has the plaintiff lost by the death of the person injured? And it is to be considered without regard to the malice or vindictiveness of the trespasser; and the court below on the trial will confine the investigation to the "pecuniary injury" to the beneficial plaintiffs.

We conclude that the present action is not for "damages merely vindictive," and does not abate by the death of the defendant. Butner v.Keehln, 6 Jones, 60.

PER CURIAM. There is no error.

Cited: Peebles v. R. R., 63 N.C. 240; Kesler v. Smith, 66 N.C. 157;Shields v. Lawrence, 72 N.C. 45; Bradley v. R. R., 122 N.C. 974;Killian v. R. R., 128 N.C. 263.

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