Williams Hunt, of McComb, and Green, Green Jackson, of Jackson, for appellant.
The sole question presented for consideration and decision here is whether or not a cause of action for the slander of the person and for the malicious attempt to destroy the business of a person survives the death of such person and whether the administratrix may be permitted to revive this cause and proceed on the merits.
The section that directly applies to the action here and that supports our contention that this cause survives, and that the administratrix should have been permitted to revive the cause and proceed on the merits, is section 1714, Mississippi Code of 1930.
The question of the survival of actions has been considered by the courts of various states and in fact has been considered in several cases in our own state, but so far as we have been able to find, our own court has not decided whether an action for slander survives or is abated by death of the plaintiff.
The courts are not uniform in their holding because of the language used in the various statutes, it being uniformly held that a cause of action for slander did not survive, but was abated, under the common law.
Citizens Southern National Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313, 87 A.L.R. 230; Gallagher's Estate, 10 Pa. Dist. R. 733; Harris v. Nashville Trust Co.,, 162 S.W. 584, 49 L.R.A. (N.S.) 897; 1 C.J., Secundum, sec. 132, page 178.
One of the tests of whether a cause of action survives or abates is whether it is assignable or not.
Tucker v. W.U.T. Co., 157 N.Y.S. 873, 94 Misc. 364 ; Woodford v. McDaniels, 81 S.E. 544, 73 W. Va. 736 , 52 L.R.A. (N.S.) 1215; Hollett v. Wilmington Trust Co., 172 A. 763; Wilcox v. Bierd, 162 N.E. 170 , 33 Ill. 571 ; State v. City, 31 P.2d 552, 167 Okla. 582 .
As a general rule, assignability and survivability of causes of action are convertible terms; and such, and only such, causes of action as are assignable survive; but there are some exceptions to this rule.
Singley v. Bigelow, 291 P. 899 , 108 Cal.App. 436 ; Columbian Nat. L. Ins. Co. v. Lemmons, 222 P. 255, 96 Okla. 228 ; Dowlin v. Boyd, 291 S.W. 1095; Aldridge v. Stout, 36 S.W.2d 1110 ; Warner v. Benham, 218 P. 260, 126 Wn. 393 ; Kinney v. Town, 91 S.E. 260, 79 W. Va. 463 ; 1 C.J., page 174, note 12; Williams v. Harris, 193 S.W. 403; Olson v. Scully, 129 N.E. 841, 296 Ill. 418 ; People v. Western Life Indemnity Co., 104 N.E. 219, 261 Ill. 513 , Ann. Cas. 1915A 266; City of Milwaukee v. Boynton Cab Co., 231 N.W. 597, 201 Wis. 581 , 229 N.W. 28; 1 C.J., page 175, note 13; Bradley v. Federal Life Ins. Co., 216 Ill. App. 602 , 129 N.E. 171; Haugse v. Sommers Bros. Mfg. Co., 254 P. 212 , 43 Idaho 450 , 51 A.L.R. 1438.
Where a right of action is so entirely personal that the person in whom it exists cannot by contract place it beyond his control it will not survive.
72 A.L.R. 1328; 1 C.J., Secundum, page 180; Blodgett v. Greenfield, 281 P. 694 , 101 Cal.App. 399 ; Johnston v. Savings Trust Co., 66 S.W.2d 113; Hewlett v. George, 68 Miss. 703 , 9 So. 885, 13 L.R.A. 682; Section 1713, Code of 1930; 63 C.J. 886; 26 R.C.L. 930; Wagner v. Gibbs, 80 Miss. 53 ; Conklin v. Railway Co., 81 Miss. 161 ; McNeely v. Natchez, 148 Miss. 184 , 114 So. 484 .
With deference, the sole extent of the rule now obtaining in Mississippi is that all demands are assignable even though they should be for a penalty, but if after assignment, the party offending should die, then the penalty would be uncollectible, not because it was not assignable, but because the criminal law does not apply to a person who is dead.
Cassedy v. Jackson, 45 Miss. 397 ; Hamilton v. Jackson, 127 So. 302 .
Under the authorities it is our contention that Section 1714 is broad enough to, and directly permits the revival of a cause of action for slander, especially where, under Count Six of the declaration in this suit the allegation is made that there was a destruction of the business of the deceased by reason of the wrongful imputations made against Donald T. Catchings.
We, therefore, most respectfully submit that the action of the lower court was erroneous, and that this cause should be reversed and remanded with directions to revive in the name of the administratrix and permit her to proceed on the merits.
Hugh V. Wall, of Brookhaven, for appellee.
At common law an action or cause of action for libel or slander abated on the death of either party.
1 C.J. 202, par. 382; 1 R.C.L. 48, par. 47.
The appellant being without authority at common law relies upon the statutory law of Mississippi, which, with due deference, in our opinion, does not authorize appellant's position.
A decision of this case in our opinion rests solely upon the proper construction of section 1714, Mississippi Code of 1930.
A proper construction of this section of the Mississippi Code depends upon the definition and construction of two words "Personal Action." A suit for slander is not a personal action but is a suit for damages to reputation.
Section 1712, Mississippi Code of 1930, provides that only personal actions survive in favor of executors, administrators, etc.
All of these statutory provisions are in derogation of the common law and must be construed strictly.
With due deference to opposing counsel, it is our opinion that this court has already decided this case in favor of the appellee in the case of McNeely v. City of Natchez, 148 Miss. 268 . The court, in the McNeely case, stated: "The decision of this question turns upon the definition of the words `personal action,' used in the above quoted section. At common law, a personal action, in the absence of special statute, did not survive, against the deceased. And sections 1834 and 1836, Hemingway's Code of 1927 (which are the same as the corresponding sections in the Code of 1930) are in derogation of the common law, and must be strictly construed. It will be presumed that the Legislature used the technical words "personal action," ascribing to them their strictly technical meaning." Citing 1 C.J., page 229 to 233.
Personal actions are such whereby a man claims a debt or personal duty or damages in lieu thereof; and likewise where a man claims a satisfaction in damages for some injury done to his person or property.
Linscott v. Fuller, 57 Me. 406 ; Com. v. Lehigh Valley R. Co., 7 Kulp. (Pa.) 229; Forrester v. Thrasher, 9 Ont. Pr. 383; Hayden v. Vreeland, 18 Am. Rep. 723; Jones v. Townsend, 2 So. 612; 1 C.J., 932, par. 15.
A personal action is one for the recovery of personal property, the enforcement of a contract or damages for its breach, or for damages for injury to person or property.
1 C.J. Secundum, page 947, sec. 17.
Personal actions are those brought for the specific recovery of goods, chattels or damages or other redress for breach of contract, etc.
1 Am. Jurisprudence, page 430, sec. 38.
These definitions of "personal actions," defined by the
recent standard authorities, American Jurisprudence and Corpus Juris Secundum, supra, are the same as set out in the old set of Ruling Case Law and Corpus Juris, quoted with approval in the McNeely case, supra, applies to sections 1712 and 1714 of the Mississippi Code of 1930, and we think preclude actions for slander and specifically and conclusively hold that slander is not a personal action, as defined by the Mississippi Code.
The state Legislature, in passing upon section 1714 of the Mississippi Code of 1930 in providing for suits that would not be abated by the death of the parties used the words "personal actions." These words were used with the full knowledge that slander was not a personal action and with the full knowledge that a slander suit would be abated by the death of the parties unless the Legislature specifically provided otherwise, and with this knowledge before them the state Legislature intentionally left a suit for slander as provided by common law, thereby refusing to provide that a suit for slander would survive.
Suits for slander have never been looked upon with great favor by the courts and law writers.
1 Am. Jurisprudence, sec. 122, page 87.
The lawmakers of Mississippi looked upon slander with disfavor in that it provided that no suit for slander could be maintained unless begun within one year after the utterance of the slander, whereas, in most other causes of action longer periods of time were given.
An action or cause of action for libel or slander abates on the death of a party unless it is within a statute providing for a survivor.
1 C.J., Secundum, page 200, sub-section D.
We submit that Mississippi has no statute providing for a survival of a cause of action for slander, and therefore Mississippi is under the common law rule which is conceded precludes a revival of the cause of action for slander after the death of either party.
1 R.C.L. 48, sec. 47; Worten v. Howard, 2 S. M. 527; McNeely v. City of Natchez, 148 Miss. 268 .
Mississippi being a common law state, we are governed by the common law, unless we have some statutory provision controlling the particular subject.
Hollman v. Bennett, 44 Miss. 322 .
We think that when the state Legislature restricted suits, as provided in section 1714, that would not abate to "personal action" as specifically provided that an administrator of a deceased person may prosecute, it had in mind section 24 of the Constitution and the statute means by "personal action" damages done to persons in their lands, goods and property, and it meant to exclude therefrom recovery of damages done to reputation, and if a slander action is one for the recovery of damages to a person's reputation and not to his lands, goods or person, it is clear that the statute did not intend for a suit for slander to be included in section 1714 of the Code of 1930 as a "personal action," and we think that this court has so definitely decided in the McNeely case, supra.
Jones v. Barmn, 217 Ill. 383 , 75 N.E. 505; Cummings v. Byrd, 115 Mass. 346 ; Seale v. Schantz, 35 Hun. (N.Y.) 622.