Collier v. Arrington.

PATIENCE COLLIER, Adm'x. of ISAAC D. COLLIER, 0. The Executors of NICHOLAS W. ARRINGTON.

An action of Trespass, brought to recover damages for a death caused by a wrongful act, (Rev. Code, a 1, s. 9,) does not abate by the death of the defendant.

The damages in such an action are confined to the measure of the pecuniary injury caused by the killing, and are not intended as a solatium to the plaintiff, or as punishment to the defendant.

(Buttner v. Keehln, 6 Jon., 60, cited and approved.)

SCIRE FACIAS, to revive an action of Trespass, heard before Barnes, J., at Spring Term, 1867, of the Superior Court of FRANKLIN.

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.

Edwards, for the appellants.

The act 9 and 10, Vict., (of which, the act upon which the original suit here was brought, Rev. Code, c. 1, s. 9, &c., is a copy,) does not extend the remedy against the executor or administrator of the wrong doer. 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.

Moore, contra.

Collier v. Arrington.

The statute upon which this action was brought excludes all idea of vindictive damages. The English act from which it was taken, has frequently been held to authorize only damages for actual loss, excluding solatium and smart 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. See Pa. R. R. Co. v. McClorky, 23 Pa., 526; Mann v. Boston & W. R. R., 9 Cush., 108: Hollenbook v. Berkshire Railway, ibid 481; Oldfield v. Harlaem R. R. Co., 14 N. Y., 310.

Therefore, under the Rev. Code, c. 1, s. 1, the decision below is correct.

READE, J. 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, c. 1, s. 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, &c., whether at law or in equity, except suits for penalties and for damages merely vindictive, shall abate by reason of the death of either party, &c.; but the same may be carried on by the heirs, executors and administrators of the deceased party, &c.

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 on by and not against the representatives; and that a suit is carried on by a plaintiff and against a defendant; and that therefore there is no provision for car

Collier . Arrington.

rying it on against the representatives of a deceased defendant. We find, by reference to the Rev. Stat., c. 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 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 of pecuniary 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.

Pugh . The Raleigh and Gaston Rail Road Company.

JOHN W. PUGH r. THE RALEIGH AND GASTON RAIL ROAD COMPANY.

The Raleigh and Gaston Rail Road Company did not incur the penalties imposed by the Rev. Code, c. 101, s. 30, by transporting its passengers and freights in boats, across the Roanoke, at Gaston, during the time that there was no bridge at that point, in consequence of its having been burned by the military, in 1865.

DEBT, tried at Spring Term, 1867, of the Superior Court of NORTHAMPTON, before Barnes, J.

The facts necessary to an understanding of the opinion will be found therein.

In the court below the jury found a verdict for the plaintiff, subject to the opinion of the Judge, upon matter reserved. Upon consideration, his Honor set the verdict aside, and the plaintiff appealed.

Bragg, for the appellant.

Moore, and Rogers & Batchelor, contra.

PEARSON, C. J. This is debt for $12,006, claimed as penalties for transporting persons and property across the Roanoke river at Gaston, contrary to the statute, Revised Code, c. 101, s. 30.

The statute provides: "If any unauthorized person shall pretend to keep a ferry, or to transport for pay any person and his effects, within ten miles of any ferry on the same river or water, which theretofore may have been appointed, he shall forfeit and pay two dollars for every such offence, to the nearest ferryman."

The old Raleigh and Gaston Rail Road Company was in

NOTE-Judge Battle, being one of the stockholders in the Raleigh and Gaston R. R. Co., took no part in the decision of this case.

Pugh v. The Raleigh and Gaston Rail Road Company.

corporated in 1835, and was authorized to construct a railroad from some point in or near the city of Raleigh to some point at or near Gaston, on the north side of the Roanoke river, heretofore called Wilkins' Ferry, and "to provide everything necessary and convenient for the purpose of transportation on the same." Out of abundant caution the railroad company paid to Wilkins the sum of three thousand dollars, in satisfaction of the damages he claimed by reason of his ferry. The plaintiff is the lessee of Wilkins, and stands in his place in reference to the ferry.

The old company failed and was bought out by the State, and, in 1852, the present Raleigh and Gaston Rail Road Company was incorporated, and the State transferred to it the road, property and rights of the old company. In 1865 the R. R. bridge at Gaston was burned down by order of the military authority, and the R. R. Company then used boats to transport their passengers and freight across the river at the nearest convenient points below the site of the bridge.

I have stated the facts, because, as it seems to the court, a mere statement is sufficient to show that the plaintiff cannot maintain his action. There is no error.

The question is, are the defendants "unauthorized persons"? Clearly not, for the charter gives the company full authority to transport its passengers and freight across the river at or near Gaston, and the legal effect of the acts of incorporation is to repeal the act under which the plaintiff claims the penalties in respect to the ferry at Gaston, and to make a special exemption in favor of the R. R. Company, as much so as if a proviso to that effect had been inserted in the general statute. The power of the Legislature to repeal an act imposing penalties, or to make exceptions to its operation, was not questioned in the argument, and is in fact too clear for discussion.

After the bridge was destroyed the R. R. Company was required and authorized by the acts of incorporation to