# Gerling v. Baltimore Ohio Railroad Company/Dissent Harlan

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
151 U.S. 673
Gerling v. Baltimore Ohio Railroad Company
Mr. Justice HARLAN, (dissenting.) I cannot agree that this action abates, or that the writ of error should be dismissed, because of the death of the original plaintiff.
In the discussion at the bar of the question whether the action had abated by the death of the plaintiff, reference was made to chapter 103 of the Code of West Virginia, giving to the personal representative of one whose death has been caused by the wrongful act, neglect, or default of any person or corporation a right of action for damages against such person or corporation. The right to bring such action is limited to two years, and the damages recovered cannot be subjected to the payment of the debts and liabilities of the decedent, but must be distributed to the parties, and in the proportion provided by law in relation to the personal estate of those who die intestate. In my judgment, those provisions are of no consequence in the present inquiry. This suit was brought by the person alleged to have been injured, to recover compensation for such injuries as he sustained. It is not claimed that his death, since this writ of error was sued out, was caused by those injuries. And the question is whether this personal action was abated by his death. Its determination, it is agreed, depends upon the law of West Virginia.
By the Code of West Virginia, c. 127, it is provided:
'Sec. 1. Where a party dies, or becomes convicted of felony, or insane, or the powers of a party who is a personal representative or committee cease, if such fact occur after verdict, judgment may be entered as if it had not occurred.
'Sec. 2. Where such fact occurs in any stage of a cause, whether it be in a court of original or appellate jurisdiction, if it occur as to any of several plaintiffs or defendants, the suit may proceed for or against the others, if the cause of suit survive to or against them. If a plaintiff or defendant die pending any action, whether the cause of action would survive at common law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract.
'Sec. 3. If, in any case of appeal, writ of error or supersedeas which is now or may hereafter be pending, there be at any time in an appellate court suggested or relied on, in abatement, the death of the party, or any other fact which, if it had occurred after the verdict in an action, would not have prevented judgment being entered as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if the said fact had not occurred.'
Under the first section above quoted, judgment could be entered without reviving the action, if the party died after verdict. That section is substantially like section 1 of the statute of 17 Car. II. c. 8. The object of the first clause of the second section of chapter 127 of the Code of West Virginia was to dispense with the necessity of reviving an action in which there were several plaintiffs or defendants, one of whom had died pending the action, provided the cause of suit was one which, according to the settled principles of the common law, survived to or against the other parties. This clause had the same object as the sixth and seventh sections of the statute of 8 & 9 Wm. III. c. 11. These English statutes were examined in Kramer v. Waymark, L. R. 1 Exch. 241, 243, in which an infant plaintiff sued by next friend to recover damages for injuries sustained through the negligence of the defendant. The child died after verdict, and before judgment was signed. Upon a rule to show cause why the judgment should not be set aside on the ground of the death of the plaintiff before judgment, the court discharged the rule, saying that the proceedings could not be stayed, in face of Palmer v. Cohen, 2 Barn. & Adol. 966. In the latter case, which was an action for libel, the plaintiff died after verdict, and before judgment was entered by his executor at the next term. The court refused to set aside the judgment, holding that the death of the plaintiff after verdict did not prevent his executor from entering judgment. In the same case the court referred to the common-law procedure act of 1852, (section 139,) which provided that in all actions, personal, real, or mixed, 'the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict,' (St. 15 & 16 Vict. c. 76, § 139,) and said that it was stronger than the statute of Car. II., and applied 'to all actions, whether they would have survived to an executor or not.' See Gaines v. Conn, 2 Dana, 232.
The principal difference between the West Virginia statute, before it was amended in 1868, and the statutes of 17 Car. II. and 8 & 9 Wm. III., was that the latter did not apply to real actions, whereas the former embraced all actions,-real, mixed, and personal. The first clause of section 2 of chapter 127 of the West Virginia Code is important in the present discussion, because the words, 'if the cause of suit survive to or against' any one of several plaintiffs or defendants, show that, even when that section was adopted, the legislature had in mind the distinction at common law between actions that survived and those that did not survive. And in 1868, with this distinction still in view, the legislature added the second clause of the second section, providing that 'if a plaintiff or defendant die pending any action, whether the cause of action would survive at common law or not, the same may be revived and prosecuted to judgment and execution in the same manner as if it were for a cause of action arising out of contract.'
If the second clause of section 2 of chapter 127 had never been adopted, an action in tort would not have abated in West Virginia by reason of the death of the plaintiff after verdict, but judgment could have been entered upon the verdict. This, according to Kramer v. Waymark, above cited, was the construction placed on the English statute, upon which the first section and the first clause of the second section of chapter 127 of the Code of West Virginia were evidently based. But the second clause of the second section of that chapter was a step in advance. It seems to me clear that the legislature intended by that clause, and under the circumstances stated in it, to permit any action, whatever its nature, and at every stage of it, to be revived and prosecuted to judgment and execution without reference to the question whether the cause of action would or would not survive at common law. The purpose was to remove from the jurisprudence of West Virginia the distiction existing at common law between causes of action that survived and those that did not survive. Martin sued to recover compensation for the injury alleged to have been done to him through the negligence of the railroad company. This cause of action would not have survived at common law, where death occurred before verdict. But that fact became immaterial under the legislation of 1868, which expressly provided that, whether the cause of action would survive at common law or not, the case could be revived and proceed to judgment precisely as it might do in cases of contracts. The decision now rendered makes the statute mean just what it would mean if it did not contain the words, 'whether the cause of action would survive at common law or not.' The court holds that an action cannot be revived and prosecuted to judgment and execution if the cause of action be one that would not have survived at common law: and this, notwithstanding the statute, in plain words, says that the inquiry 'whether the cause of action would survive at common law or not' is immaterial.
It is said that this conclusion cannot be sustained, with due regard to the decisions of the supreme court of appeals of West Virginia. The case particularly relied on in support of this contention is Cunningham v. Sayers, 21 W. Va. 440, 444. There death occurred before the verdict, and the question was whether an action for unlawful entry and detainer abated upon the death of the plaintiff. The court held that the action did not abate, and its decision of that point is expressed in the syllabus. As the constitution of the state makes it the duty of the court 'to prepare a syllabus of the points adjudicated in each case,' the profession, in that state, look only to the syllabus to ascertain the points in judgment. When, however, we turn to the opinion of the court, nothing, I submit, is found in it justifying the conclusion this court has reached. Referring to the last clause of section 2 of chapter 127 of the Code, the supreme court of appeals of West Virginia said: 'It was not the object of the statute to create any new right, and give an action to the heir, devisee, or representative which he had not at common law.' No one supposes that that clause gives a personal representative the right of action to sue for personal injuries to the decedent. The personal representative can bring an original action only where death is caused by the wrongful act or default of the defendant. He does not bring an action where one rightfully brought by the decedent is revived in his name as personal representative. But the supreme court of appeals of West Virginia proceeds: 'But where the representative, heir, etc., had a right, by suit, to accomplish the same object, substantially, as the ancestor had in view in bringing the suit, that for convenience it should not abate on the ancestor's death, but might be revived.' Even this principle, the statement of which was not at all necessary to the decision, is sufficient to embrace the present case; for, as the suit of Martin was to recover compensation for the injuries he received, a revivor of it, in the name of his personal representative, and its prosecution to judgment and execution, would accomplish substantially the same object the decedent had in view, namely, to compel the railroad company to pay for the injury inflicted upon him as the result of its negligence.
Another case referred to in support of the contention that the action abated by the death of the plaintiff is Curry v. Mannington, 23 W. Va. 14. But that case did not involve any question in reference to the revivor of an action for personal injuries received by the plaintiff. It was a suit against a municipal corporation for injuries alleged to have been received through the neglect of the defendant to keep its streets and walks in repair. It is true that the court, in that case, said: 'in the cases, however, of injuries to the person, and not to the property or estate, of the decedent, whether by assault, battery, false imprisonment, slander, negligence, or otherwise, if either the party who received or he who committed the injury die, the maxim applies rigidly, and no action can be supported either by or against his representative. 3 Bl. Comm. 302. In this state the only exception to this rule, so far as I have been able to discover, is the provision of our statute embracing what is known as 'Lord Campbell's Act,' giving a right of action to the representative against any party wrongfully causing the death of his decedent. Code, p. 545, c. 103, §§ 5, 6.' But it is plain from the context that this language had reference to the meaning of a particular statute of limitations of personal actions, that used the words, 'if they be for matters of a nature that in case of the death of the party, they could not be brought by or against his representative.' In effect, the court was considering the question as to whether a personal representative could bring an original action for personal injury received by his decedent. That is an entirely different question from the one here presented, which is whether an action for the recovery of money, duly brought by the person injured, could, upon his death, be revived in the name of his personal representative, and be prosecuted by the latter to judgment and execution. There is not a hint, much less a distinct statement, either in the syllabus or in the opinion in Curry v. Manington, in respect to any such question.
Suppose Martin had obtained a judgment for $10,000 in damages, and had died after the case was brought hero by the railroad company. Could it not have been revived in this court against his personal representative? And if this court had reversed such a judgment, and remanded the cause for a new trial, could the railroad company have prevented another trial in the court below by the suggestion of record that, pending the writ of error in this court, the plaintiff had died? In my opinion, this question should be answered in the negative, if any effect whatever be given to the local statute. A different rule should not be applied when the case is here upon writ of error sued by the plaintiff.
Reference has been made to the case of Flinn v. Perkins, 32 Law J. Q. B. 10, 11, 8 Jur. (N. S.) 1177. That was an action to recover damages for a personal injury. The plaintiff died before verdict, and the effort was to have it revived in the name of the personal representative. It was held that the common-law procedure act did not permit the revivor under such circumstances. But that case differs from this in two important particulars: (1) There was a verdict and judgment in this case before the plaintiff died; (2) there was no provision in the English statute, as there is in the West Virginia Code, giving the right of revivor, where the plaintiff or defendant dies pending the action, 'whether the cause of action would survive at common law or not.'
But, if I am wrong in my interpretation of the Code of West Virginia, there is still another view of this question which, in my judgment, is important. Martin's death occurred after the assignment of errors was filed and made part of the record. In Tidd, Pr. 1163, it is said: 'A writ of error may abate by the act of God, the act of law, or the act of the party. If the plaintiff in error die before errors assigned, the writ abates, and the defendant in error may thereupon sue out a scire facias quare executionem non to recover the judgment against the executors or administrators of the plaintiff in error. But, if the plaintiff in error die after errors assigned, it does not abate the writ. In such case the defendant, having joined in error, may proceed to get the judgment affirmed, if not erroneous, but must then revive it against the executors or administrators of the plaintiff in error.' And so it was adjudged by this court in Green v. Watkins, 6 Wheat. 260, 262, in which Mr. Justice Story, speaking for the court, and after referring to the rules that controlled the question of abatement, whether in real or personal actions, where the party died before judgment, said: 'But in cases of writs of error upon judgments already rendered a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law the writ abates; but if after assignment of errors, it is otherwise.' These authorities, I submit, indicate that the writ of error should not be dismissed after there has been an assignment of errors.
Being of opinion that the action has not abated by the death of the plaintiff, I am unable to concur in the opinion and judgment of the court.
[The subsequent sections as to discontinuance are not material.]
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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