City of Springfield v. Clement , 296 Mo. 150 ( 1922 )

The plaintiff instituted this suit in the Circuit Court of Greene County, to subject undisposed-of property, both real and personal, in the hands of certain devisees and legatees under the will of Otis L. Milligan, to the payment of a certain claim of the city of Springfield, claimed to have accrued to said city after the administration of said estate had been closed, the assets distributed and the executors discharged.

Each and all of the defendants filed separate demurrers to the petition, which were by the court sustained, and the plaintiff declining to plead further, thereupon the court dismissed the plaintiff's bill, and rendered judgment accordingly for the defendants.

An appeal was taken to the Springfield Court of Appeals which reversed the judgment and remanded the cause for a new trial, FARRINGTON, J., dissenting, and thereupon the cause was certified to this court.

Briefly, the facts are these: On the fifth day of February, 1913, one Otis L. Milligan was the owner in fee of a certain store building in the city of Springfield, Missouri, located on the southeast corner of the Public Square and South street. On this date and for a long time prior thereto, a downspout or spouts, on the west side of said building and leading down to the sidewalk, were in a defective and rotten condition so that water beng conducted thereby from said building would escape through holes in said downspouts onto the sidewalk and run across the walk to the curb, and in times of inclement weather would freeze, forming a rough formation of ice amounting to an obstruction. On said date such a formation of ice was on said walk and had been for several days. On this date one Annie M. Abbott, in passing along this walk, was caused to fall by such obstruction, and was severely and permanently injured.

In March, following, Otis L. Milligan, died testate. His will was duly probated in the Probate Court of Greene County, and in due course of time final settlement was made and approved, the assets distributed, and the executrices discharged on the 20th day of June, 1914.

On the 25th day of August, 1916, said Abbott filed suit against the city of Springfield, on account of personal injuries received as aforesaid. She recovered judgment against said city for $6000, which judgment was affirmed by the Springfield Court of Appeals in December, 1918. The city paid this judgment on May 6, 1919.

In August, 1919, this suit was instituted by said city against these defendants.

In order to procure a clear comprehension of the legal proposition presented for determination it is important to bear all the dates involved in the case in mind, and they are as follows:

Annie M. Abbott was injured on the 5th day of February, 1913.

Otis L. Milligan died testate, in March, 1913.

The will was probated and final settlement made and assets distributed on the 20th day of June, 1914.

The Abbott suit was filed on the 25th day of August, 1916.

The judgment was rendered in her favor on the 21st day of May, 1918.

It was affirmed in this court on the 25th day of February, 1919, and is reported in 210 S.W. 443.

It was paid by the city on the 6th day of May, 1919.

This suit was filed in August, 1919.

The demurrers tendered the issue that the petition did not state facts sufficient to constitute a cause of action.

The concrete proposition really presented by the demurrers for determination is whether or not such an action survives against the tortfeasor.

It is the contention of counsel for defendants that such actions do not survive, neither under the common law nor under the statutes of the State.

Prior to the enactment of Section 5438, Revised Statutes 1909, there was no doubt but what the death of a tortfeasor wiped out and destroyed a cause founded upon a tort, committed by him prior to his death. This seems to have been the universal rule. [Bates v. Sylvester, 205 Mo. 493; Millar v. Transit Co., 216 Mo. 99.]

And in our opinion said Section 5438, Revised Statutes 1909, the same as Section 4231, Revised Statutes 1919, has no application to this case, for the reason that this section of the statute by its express terms applies only to actions pending at the time of the death of the deceased, and this record discloses that the Abbott suit was not filed until August 25, 1916, and Otis L. Milligan, the tortfeasor, died in March, 1913, some three years before that suit was brought. The same views as here expressed were held to be the law in the case of Showen v. Street Ry. Co., 164 Mo. App. l.c. 47.

And this court in the case of Downs v. United Rys. Co., 184 S.W. 995, cited upon this point with approval the case of Showen v. Ry. Co., supra.

From the views thus expressed we may take it for granted that said Section 5438 does not assist the plaintiff in this case.

Something has been said regarding the applicability of Section 5431, Revised Statutes 1909. This statute provides for contribution between certain judgment debtors in certain cases. Clearly it can have no application to this case, for the reason that Milligan, the tortfeasor, was not a judgment debtor, in fact had never been sued. So under the facts of this case we are clearly of the opinion that the cause of action did not survive against Milligan, nor his heirs, executors or administrators.

Finding no error in the record, the judgment of the circuit court is affirmed. All concur, except James T. Blair, J., who dissents.