Kirkpatrick v. Ferguson-Palmer Co.

Stevens, J., delivered the opinion of the court. This is an action for damages instituted by Mrs. Lucretia Kirkpatrick, -the mother, and certain named brothers and sisters of Eobert Lee Kirkpatrick against appellee, Ferguson-Palmer Company, to recover damages for the alleged wrongful killing of the said Eobert Lee, who at the time of his death was a minor and the eldest son of the said Mrs. Kirkpatrick. On the trial of the case the court excluded the plaintiffs’ testimony and granted a peremptory charge in favor of the defendant. A motion to set aside the judgment and grant a new trial was by the circuit judge taken under advisement and overruled. From the adverse judgment appellants prosecute this appeal. It appears that the deceased, Eobert Lee Kirkpatrick, was employed by appellee as a “swamper.” Defendant company was engaged, in the sawmill business, in the prosecution of which it employed laborers to cut and fell large trees to be sawn into lumber. It was the duty of the deceased to trim up all trees felled by the cutting crew, and to clear up and remove obstructions around the trees which were to be cut. Eobert Lee was employed by appellee without the mother’s consent and was killed September 16, 1916, only three days after he was employed. Mrs. Kirkpatrick, the mother, is the sole surviving parent and her deceased son was about eigh — 884 — teen years and three and one-half months old at the time of his death. The proof indicates that he was a hoy of at least average size; that he was raised on a farm; that in the year 1915 he made a crop and “hauled cross-ties and hauled logs and had them sawed.” The crew engaged in felling trees were busy sawing down a tree when an employee at one end of the saw stepped aside for a drink of water, and thereupon the deceased, without any request or direction from any one, took the employee Griffin’s place at the saw. In a moment the foreman, Mr. Denton, observed the deceased in the act of sawing, and, according to the -foreman’s testimony, directed the deceased to turn loose the saw and get back out of the way. The boy did not heed this direction, and almost immediately after being ordered away from the saw the tree began to fall, and in falling the tree struck the deceased and killed him instantly. The testimony of the foreman ivas not materially contradicted. The foreman testified: “I told Buddy Kirkpatrick to get out of the way, and he didn’t. I says, ‘Get back out of the way,’ and he sawed on some two or three more licks, and the tree popped, and I hollered to him to get back out of the way again, and he made a turn to go, and I hollered a third time to get back out of the way. ’ ’ At another point: “I says, ‘You get away from there; that ain’t your place at all,’ and I walked around the tree about six or eight feet from the tree and told him again, and says, ‘You get back away from there and turn the saw loose. You haven’t any business in there at all.’ ” It appears further that all of the employees ran from the falling tree except the deceased, who walked. A full and complete statement of all the testimony is unnecessary, for the reason that in pressing the motion for a new trial and in the presentation of this appeal counsel for appellants concede their inability to recover damages for the negligent killing of the minor, but ear — 885 — nestly contend that the suit should now he treated and viewed as an action by the sole surviving parent to recover damages for the loss .of services of her minor son. In making this contention counsel argue that the measure of damages would be the loss of services from the time of the wrongful employment until the deceased would have become twenty-one years of age. It is conceded that the deceased was ldlled instantly. The position of counsel may be stated in their own language copied from the brief as follows: “We do not now insist, nor did we so insist after the proof was in the lower court, that there was such negligence in the felling of the tree by the servants of the appellee as would entitle the heirs or legal representatives of Buddy Kirkpatrick to recover for the loss of his life. The declaration as amended states a cause of action accruing to Mrs. Kirpatrick by reason of the fact that the appellee employed her minor son without her consent, and put him to work at a dangerous undertaking and in a dangerous locality, and that he was injured while in said employment and in said place, said injuries resulting in his death and that by reason of said events she lost the services of her son during his minority.” It is the contention of appellee, on the contrary, that at common law no action would lie for the death of a human being; that the right here to recover is purely statutory; that death- was instantaneous; that the right to maintain an action under the statute depends upon a real, wrongful, or negligent act; and that the true test is- whether the person killed could have maintained an action against the defendant company if death had not resulted. It is useless to reiterate what has been, time and again, stated by all the courts that by the common law there could be no recovery of damages for the death of a human being. As stated by the supreme court of the — 886 — United States in Mobile Life Ins. Co. v. Brame, 95 U. S. 754, 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. . . - . By the common law, actions for injuries to the person abate by death, and cannot be revived or maintained by the executor or [by] the heir. By the act of Parliament of August 21, 1846, St. 9 & 10 Vict, an action in certain cases is given to the representatives of the deceased.” The act of Parliament referred to (Lord Campbell’s Act) forms the basis for statutes which have been enacted in practically all the states of the Union. The right to recover, then, being statutory, resort must be had to the statute for the right, the remedy, and the measure of damages. The frank admissions of counsel for appellants narrow the issue here presented. There was no negligence in the felling of the tree, and consequently no negligence that can be regarded as a proximate cause of the death chargeable to the master. The suit is not one to recover damages for the loss of services from the time' of the wrongful employment to the date of the boy’s unfortunate death. Death was instantaneous, and the effort here is to recover for services which the mother expected to receive from her son during his minority. Her claim for these expected services, in our judgment, cannot be allowed. It may here be conceded that if the minor had been merely crippled or disabled, appellee would have been liable for services lost during the minority as a result of the injury. The death of the minor, however, terminates the relationship of master and servant, and after death' it is evident there could be no services. In the present case the falling of the tree and the apparent negligence of the deceased constitute the proximate cause. Death intervenes and destroys the relationship of master and — 887 — servant, and after death no right of the mother is infringed, for the mother’s right to services is gone. It might be .speculation to assume that the boy would continue to live with his mother or to fix any time during which the services would continue. But aside from this, the law deals only with the living and, generally speaking, not*with the dead; and the great weight of authority limits the master’s right to recovery to those services accruing prior to the death of the servant, or, in this case, to those services of the boy accruing prior to his death. The argument of counsel seems to be divided into two main contentions: First, that the recovery here is based upon the common law altogether; and, secondly, upon both the common law and upon our amended statute (chapter 214, Laws of 1914). Many cases may be found holding that if the master employs a minor child without the consent of the parent and places him to work at a dangerous place, he is liable “for any injury as the result of being placed at such work.” See on this point Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974; editor’s note, 28 Ann. Cas. 234. No quarrel is here to be made with these authorities. The great weight of authority limits the measure of damages to those services accruing prior to the death of the child. -Our court has long since indicated this to be the true rule. This measure of damages was indicated by our court in 1885 in N. J. & C. R. R. Co. v. Cook, 63 Miss. 38, which was a suit by the mother, as sole surviving parent, for the loss of services of her minor son, killed by the negligence of the railroad company. The court, by Arnold, J., said: “Death did not result instantly from the injuries received by the deceased. As surviving parent, the mother was entitled to the services of her child, and, without reference to the statute she might sue for and recover at least the value of-his services from the date of the injuries received by him to his death, and any incidental expenses she may have incurred for medical attention, — 888 — care, and nursing up to that time. She would have a remedy at common law, not for the death of the child, or for the injuries suffered by him, but for the loss of his services and incidental expenses, as above specified.” The Cook Case was reviewed by our court in Amos v. Mobile & Ohio R. R. Co., 63 Miss. 509, and there differentiated from the Amos Case, the court repeating, however, that: “It was held [in the Cook Case]that when the death of a minor child from injury inflicted by another was not instantaneous, the mother, without reference to the statute might sue at common law for damages occasioned by the loss of the services of the child and for incidental expenses incurred by her from the date of the injury which produced death to the time when the child died.” Later in 1884 the case of Meyer v. King, 72 Miss. 1, 16 So. 245, 35 L. R. A. 474, presented a suit by the appellant for loss of services of his minor son “resulting from his death by reason of the negligence, as alleged, of appellee, a druggist in the city of Vicksburg, in selling' to said minor, in willful violation of section 1252, Code of 1892, chloroform, which, after such sale, .he drank and died. It was held that the contributory negligence of the minor barred a recovery under the first count of the declaration, -and that: “The death cannot here be concatenated with the sale, as cause with effect, but is due to the new will of the minor intervening, and operating as an independent cause to produce it.” Conceding that the wrongful employment in the present case was an actionable wrong, the measure of damages under the common law could be no greater than would be the measure of damages if appellee were guilty of the wrongful or negligent killing of the boy. In other words, without our statute, recovery would be limited to services lost during the minority and' — 889 — prior to the death of the child. Authorities on this point are abundantly collated in the notes to Gulf, C. & S. F. Ry. Co. v. Beall, 41 L. R. A. 807. The editor’s note is upon the “common-law right of action for loss of services of child killed. ’ ’ The true rule is there stated in the notes as follows: “While the Georgia rule, as shown by the Georgia cases set forth supra, would seem to be firmly fixed and well settled, it would appear that outside of that state the rule that there is no common-law right of action by a parent for loss of services of his child killed by the wrongful act of another must be regarded as the true doctrine.” The Texas court in the Beall Case quotes Pigott, B, in Osborn v. Gillett (1873), L. R. 8 Exch. 88: “It may seem a shadowy distinction to hold that when the service is simply interrupted by accident resulting from negligence the master may recover damages, while in the case of its being determined altogether by the servant’s death from the same cause no action can be sustained. Still I am of opinion that the law has been so understood up to the present time, and, if it is to be changed, it rests with the legislature, and not with the courts, to make the change.” The conclusion reached by the court in that case is stated in the headnote as follows: “The loss of services of a minor child killed by the fault of another does not give the parents any common-law right of' action against, the party in fault.” It is intimated by counsel that the case of Wallace et al. v. Seales and Wife, 36 Miss. 53, justifies a recovery here. • That case, however, was a suit to recover the value of a slave hired for one purpose and improperly used for another. That case can have no bearing oil the issues now presented. At the time that action was' instituted a slave was property. Surely the deceased in the present litigation is not to be classed as property. — 890 — Is chapter 214, Laws of 1914, in aid of recovery here sought? This chapter simply re-enacts or brings forward in amended form section 721, Code of 1906, the only statute giving- the right of recovery for injuries producing death. The essential nature of the recovery under the statute in its present amended form is the same under the Code of 1906. The true test of any right to recover under the statute is whether the .deceased could have maintained an action had death not resulted. Railroad Co. v. Pendergrass, 69 Miss. 425, 12 So. 954; Meyer v. King, supra; White v. Railroad Co., 72 Miss. 12, 16 So. 248; Harris v. I. C. R. R. Co., 111 Miss. 623, 71 So. 878; Foster v. Hicks, 93 Miss. 219, 46 So. 533; G. & S. I. R. R. Co. v. Bradley, 110 Miss. 152, 69 So. 666. In White v. Railroad Co., supra, the court says: “The single question here is, could the son, had he survived, have maintained an action? If so, then, under paragraph 663, Code of 1892, the appellant can.” Meyer v. King, [72 Miss. 1, 16 So. 245, 35 L. R. A. 474]. In Hamel v. Railway Co., 108 Miss. 172, 66 So. 426, 809, it is said that: “The right in the decedent to maintain the action is made a condition precedent for that given by the statute to the next of kin.” This holding was expressly reaffirmed by our court in Harris v. Railroad Co., supra, holding that there can be no recovery where the deceased, while living, recovered final judgment for the injuries inflicted.' When counsel, therefore, concede that there was no negligent felling of the tree, they place 'themselves out of court. The foundation of the right-given by the statute is the “real, wrongful, or negligent act or omission, of the parties sued,” or the use by the defendant “of unsafe machinery, way, or appliances as would, if death had not ensued, •have entitled the party'injured or damaged thereby to maintain an action.” The statute by express terms fixes the negligence or wrong of the defendant as the — 891 — basis for any recovery, and expressly limits the right of action to that kind of case which would entitle the' injured party himself to sue for if living.. Robert Lee Kirkpatrick, if living, would have no action at all against appellee. How, then, can it be said that his mother or next of kin may sue under the statute? It is plain that they cannot. That sentence in the amended act declaring, “This section shall apply to all personal- injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death,” does not change the essential nature or object of the statute. This provision of the statute appeared in the Code section, and the purpose of the amendment by the Laws of 1914 was to enable the persona] representatives of the deceased person to bring the action the same as the persons already authorized by statute to sue, even though the death be instantaneous. It is stated in Standard Encyclopedia of Procedure, vol. 6, p. 371, that: “Notwithstanding the action is a new cause of action, under the statutes modeled after Lord Campbell’s Act, it is generally provided by statute, or it is held by construction, that the action for wrongful death is only maintainable where the circumstances are such as would have entitled the deceased to recover for his injuries had he survived.” So it is that the rights of the mother must here be inquired into and measured just as if the statute did not exist. This fact appears to differentiate the case of Williams v. Railroad Co., 91 Ala. 635, 9 So. 77, so much relied upon by appellants. It appears that the Alabama statute is there in aid of the recovery. The authorities on the main points are too numerous to discuss or even to collate in' a brief opinion. A few in addition to those discussed above and pertinent to the issue are as follows: Trow v. Thomas, 70 Vt. 580, 41 Atl. 652; Sherman v. Johnson, 58 Vt. 40, 2 Atl. 707; — 892 — Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Thomas v. Union Pacific, 1 Utah, 232; Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; I. C. R. R. Co. v. Slater, 129 Ill. 91, 21 N. E. 575, 6 L. R. A. 418, 16 Am. St. Rep. 242; Cooley on Torts, (Student’s Ed.), sec. 142, p. 271; Cyc. vol. 29, p. 1641. Affirmed,. Holden and Ethridge, JJ., dissent.