DEATH BY WRONGFUL ACT — LIMITATIONS.

[Allen Circuit Court,

April Term 1898.]

Day, Price and Norris, JJ.

#### The Solor Refining Co. v. Susan Elliott, Admx.

1. Letters of Administration Authorized Administrator to Maintain Action for Death Caused by Wrongful Act.

Letters of administration issued by a probate court of competent jurisdiction authorized the administrator to maintain an action for death caused by wrongful act etc, though such letters disclose the fact that deceased left no estate either real or personal, and failed to indicate that the appointment was made for the purpose of bringing the suit.

2. Limitation of such Action was from Death of Person who Dies from the Wrongful Act.

The limitation of an action under sec. 6135, Rev. Stat. for causing death from wrongful act, runs from the death of a person who dies from the wrongful act; and the right to maintain the action, is not affected, by the lapse of time between the injury and the death, unless recovery by the deceased person, had not death ensued, is barred by the statute of limitation at the time of death

3. Contract of Settlement made by Deceased in his Lifetime with Person whose Unlawful Act is the Cause of Death, Effect.

A contract of settlement unimpeached for cause, made by the deceased in his lifetime with the person whose unlawful act is the cause of death, for the injury which resulted in the death, the terms of which contract were complied with, in the lifetime of the deceased, by the party whose unlawful act caused the death; when so pleaded, and established, is a bar to an action by his administrator under sec. 6134, Rev. Stat.

4. Section 6134, Rev. Stat. does not Create a Second Liability.

Section 6134, Rev. Stat. which warrants an action for causing death by unlawful act, does not create a second liability, and is not a double liability for the same wrong, but implies that the liability for the wrong has not been satisfied; that the penalty for the wrongful act and result, has not been paid; and the wrong doer, being deemed to be still liable for the wrong, the statute determines in whose favor the liability still exists, and points out the remedy by which satisfaction of it may be enforced.

5. Such Action can only be Maintained by the Personal Representatives of the Deceased.

An action for death by wrongful act, can only be maintained by the personal representative of deceased, when such condition exists, at the time of death, that the deceased, had not death ensued, could have maintained an action for the injury.

6. If Deceased Debarred Himself from Recovery no Action would Arise in Favor of his Next of Kin at His Death.

If deceased in his lifetime debarred himself from recovery, and had no cause of action at the time of his death, no action would arise in favor of his next of kin at his death, and his administrator would be precluded from maintaining an action under sec. 6134, Rev. Stat.

7. Contract of Settlement Pleaded in Answer, Met by a General Denial, Effect.

When a contract of settlement, pleaded in the answer, is met by a general denial, once its execution is established, the contract is beyond further attack, under the issue as tendered by the general denial.

Error to the Court of Common Pleas of Allen county.

Norris, J.

The defendant in error who was the plaintiff below, brought her action against the Solor Refining Co. for negligently causing the death of John W. Elliott. In her petition she avers her appointment as the *226administratrix of his estate, names his next of kin who survived him, and says that John W. Elliott died on February 2, 1894, and that his death was wrongfully caused by the defendant, in this way. On March 28, 1891, Elliott was an employee of the Solor Refining Co., as a laborer.. His duty was, to help in the repair of shells, into which vapor passed through a compound lcept in motion by brushes. The shell head was a heavy piece of metal.

Elliott was there by order of his foreman assisting in placing the shell head in position. A rope attached to the machine by which the-head was being -raised into position, was insecurely attached, and was suffered to so remain through the negligence of the foreman, under whose orders Elliott was acting: By reason of this the rope gave way and caused the shell head to fall upon Elliott, inflicting upon him injuries, from which on February 2, 1894, he died. Elliott had no means of knowing, and did not know of the condition of this rope ; but the foreman had the means of knowing, and did know of its condition. Plaintiff avers that Elliott was in the place assigned to him by the foreman, and was without any fault upon his part which contributed to-his injury; and that Elliott thus came to his death through the sole cause of defendant’s, negligence.

The defendant in its answer admits that Elliot was employed, that he was injured, and that he died; and denies all else in the petition.

It pleads as a further defense that on August 28, 1891, it made full settlement- with Elliott, for all loss and damage, by him sustained, by reason of said injury; that it paid him the sum of money stipulated by the contract, and that Elliott received this sum-in full settlement for all ■claims against defendant by reason of said injury. As a third defense-the defendant pleads the statute of limitations.

The defendant for her reply denies the second and third defenses in-the answer.

The issues thus made up were submitted to a jury which returned a verdict for the plaintiff. Defendant filed its motion for a new trial, which was overruled, and these proceedings in error are instituted for reversal.

The errors assigned in the motion for a new trial and in the petition-in error, ,are,

First — Because the verdict is against the weight of the evidence,, and is contrary to the law of the case.

Second — Error in overruling the motion for a new trial.

Third — Error in the charge as given and in refusing to charge as-' requested, by plaintiff in error.

Fourth — Error in the admission of evidence over the objection of' plaintiff in error, and in rejecting evidence, offered by the plaintiff in error to maintain the issue on its part.

It is claimed, that the admission of the letters of administration* was error. That the letters upon their face show, that there was no property upon which to administer: That the purpose of the administration is to settle the estate of the deceased person, and that in this-instance there is no estate ; and- that when an administrator is appointed for the sole purpose of bringing an action, that purpose must appear in the record of the proceeding resulting in the appointment. The record' of the probate court in the matter of this appointment is not before us ; so that we are unable to say whether or not it was affirmatively found, and of record, that the purpose of this appointment was to maintain this action. But be that as it may; the action — as the one at bar — is to-*227be brought and maintained by the personal representative of the deceased person. The probate court has jurisdiction to appoint, and having appointed, and being a court of competent jurisdiction so to do, it is conclusive in the face of nothing to the contrary that all the jurisdictional facts were made apparent to the court, before it took action in the premises. And the fact, that this does not appear in the letters of administration, or that the purpose for which the appointment is made, is not recited in the letters is not material. The appointment was made, the court had jurisdiction to appoint an administrator, and the judgment of the court in that proceeding is in full force. We think therefore, that the letters of administration were properly admitted in evidence, to prove the authority of plaintiff to maintain her action.

It is claimed that plaintiff’s action cannot be maintained, because of the expiration of four years since the injury which resulted in Elliott’s death, and before the commencement of this case.- The injury occurred on March 28, 1891. Elliott died on February 2, 1894. The petition in this case was filed April 28, 1895, and on the same day summons issued. Elliott’s cause of action was not barred at the date of his death, by the four years, limitation, in which his action could have been brought; so, aside from any other intervening cause, on that day, had not death ensued, he could have maintained his action, in so far as it was affected by the statute of limitation. The right of action which the plaintiff prosecutes, did not exist in Elliott’s lifetime, it arose immediately upon his death ; and though the fact as to whether this action ever would arise, so far as the statute of limitation is concerned, depended upon his right to maintain an action at the time of his death — had death not ensued; yet the statute which creates the action and the remedy — a new remedy for the same wrong, not a survival of his cause of action, but a new action which succeeded his cause of action, and which was created, by reason of his cause of action and his death; the statute which created this action limits its commencement within two years after his death. This limitation does not commence to run in his lifetime, it does not date from the injury, but it commences to run at his death when the action accrued. So that if Elliott,-had not death ensued, could at the date of his death have maintained his action, this action having been commenced within two years next after his death, is not barred by the statute of limitation. We therefore are of the opinion that the third defense in answer fails.

The second defense in defendant’s answer, pleads full and complete settlement made with John W. Elliott, for all loss, expense and damage by him sustained, by reason of the iujury of March 28, 1891, which is alleged to have resulted in his death. And that defendant performed the contract by payment of the sum that Elliott agreed to receive. Defendant sets up in its answer a copy of this contract of settlement which was in writing and signed by the parties, and pleads it as a complete and full bar to plaintiff’s recovery.

There can be no doubt that the paper writing upon which this defense is based is in form a contract with all the requisites of a contract

To this defense, is made in the reply, a general denial.

The statute of- this state, creating actions as the one at bar, in favor of the surviving wife or husband and children, or next of kin, of a person whose death is caused by thenegligence of another and affording a remedy, is a copy of the Eord Campbell act, as applicable to the conditions in this country. And the statutes in the various states, in which the cause of action of the injured party does not survive, to the same effect and of *228ithe same import, are in substance and in some instances exactly like our own statute.

The courts in construing these statutes hold, — and I take the language from the case of Price v. Railroad Co., 12 S. E. Rep. — “ That the test of the right of an administrator to maintain an action for a death by wrongful act, is whether deceased could have maintained an action for the injury, had he survived ” this appears to be the test. Those statutes :are not construed to be a reviver or survival of the cause of action of the 'deceased person ; nor to be a double liability for the same wrong: But rather to succeed the cause of action abated by the death of the injured person, and. to take its place; not in favor of his estate, but in favor of his next of kin. The wrong not having been righted in the lifetime of the injured person, the wrongdoer does not escape the penalty of his wrongful act, by the death of the person upon whom the wrong .is inflicted; but the penalty not having been paid, and the wrongdoer still being liable for the wrong, the statute determines in whose favor the liability shall exist, and points out the remedy by which satisfaction of it may be enforced. And this implies that the liability has not been satisfied and discharged. That the death was caused by the wrongful act of another and that the act was such as would if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof. The right of action must exist in favor of the injured person, at the time of his death. If he in his lifetime has debarred himself from recovery, by any act which would bind him if alive, he has no cause of action to which the statutory cause could succeed. He has discharged the liability, and created a condition which prevents the action from arising in favor of his next of kin, and which precludes his administratrix from recovering upon a liability, which the deceased in his lifetime by his own act discharged.

After a full examination of the authorities a majority of the court can come to no other conclusion than that this is the only construction that this statute will bear.

The defendant pleads a settlement, which in the absence of fraud and without impeachment for cause, is a full and complete settlement between Elliott and the defendant for the injury which it is alleged caused his death, and released defendant from all liability to him, flowing from the injury. If this contract of settlement stands, Elliott at the •date of his death had no cause of action against the defendant and that being the case, no cause of action could arise in favor of his next of kin, which could be maintained by this plaintiff. The plaintiff meets this contract of settlement as pleaded in the answer, by a general denial. Under an issue thus tendered and the execution of the contract being proved, it was beyond further attack in the action. An instrument of that character, upon a mere general denial, and without any specific attack, beyond a denial of its execution, cannot be impeached, once its execution is disclosed, under pleading tending no further issue regarding it.

So that the evidence offered, which tended to impugn the contract, was not admissible under the pleadings; and we think the court was in error when it was allowed to go to the jury.

And in so far as the charge of the court treats this contract after its execution has been established, as susceptible of further attack under these pleadings, and invites the attention of the jury to it in that regard, we think there is error.

*229*Wheeler & Brice,*for plaintiff in error.

*W. B. Richie ; Motter & Mackenzie,*for defendant in error.

And in view of the contract and its effect as we consider it, the propositions of law bearing upon it requested by defendant below to be given to the jury, as a part of the charge, should have been given, and their refusal was error.

With this view of the contract of settlement and its effect, a majority of this court conclude that the verdict is not sustained by the weight of the evidence. These errors appearing upon the face of the record', to the prejudice of the plaintiff in error the judgment is set aside and a new trial is granted at the costs of defendant in error execution is awarded and the case is remanded to the common pleas for execution and new trial.

Day, J., dissents, as to the contract of settlement barring recovery.