Alameda v. Spenser , 34 Haw. 667 ( 1938 )

  The agreed statement of facts upon which this case is submitted
sets forth that the plaintiff is the administrator of the estate
of Awili Shaw and the defendants constitute the board of trustees
of the police pension fund of the County of Maui; that Awili
Shaw, as the widow of a deceased police officer, was granted a
pension of $25 a month on December 11, 1920, by the board of
trustees of the police pension fund of the County of Maui; that
said Awili Shaw was paid the pension of $25 per month and no more
during the period from April 29, 1929, to June 30, 1933,
notwithstanding the provisions of Act 144 of the Session Laws of
1931 amending Act 9, Session Laws of 1929; that Awili

Shaw died intestate on November 19, 1936, leaving as her
heirs-at-law two adult children and that shortly thereafter the
plaintiff Frank Alameda was appointed administrator of her
estate; that during the life of Awili Shaw there was unpaid under
the provisions of said Act as arrears of the pension the sum of
$1303.90 and that said amount was due and unpaid to the said
Awili Shaw during her lifetime; that on November 3, 1937, at a
regular meeting of said board there was presented to said board
the claim of the administrator herein for the payment of arrears
of the pension of the said Awili Shaw, deceased, in the amount of
$1303.90 but said board refused to allow said claim or to pay the
same. The administrator asks judgment that said arrears of
pension is an asset of the estate of Awili Shaw, deceased, and
that the board of trustees be directed to pay said sum to the
administrator. The board requests judgment that said arrears is
not an asset of the estate of Awili Shaw, deceased, and that said
claim should not be paid by the board of trustees.
  Counsel for the board admit that in view of the decision in
Palea v. Rice, 34 Haw. 150, if Awili Shaw were alive she
could maintain an action for the arrears in the pension. They
justify the board's refusal to pay the administrator's claim
solely on the proposition that said arrears of pension is not
such a claim as survives the pensioner and becomes payable to the
administrator of the pensioner's estate.
  The statutes establishing the pension system for police
officers and their dependents after their decease were thoroughly
analyzed by this court in Palea v. Rice, supra, to which
reference may be made. None of the matters there decided are
challenged in this case. Other parts of the statute, however, are
relied upon.
  Section 7908, R.L. 1935, is in part as follows: "All pensions
granted and payable out of the pension fund shall be exempt from
seizure or levy upon attachment, execution,

supplemental process and all other process whether mesne or final
and shall not be subject to sale, assignment or transfer by any
beneficiary."
  In 1 C.J., § 303, p. 174, it is said: "At common law, as a
general rule, the qualities of assignability and survival are
tests each of the other, and it is therefore said that as a rule
assignability and survivability of causes of action are
convertible terms. * * * Whether an action will lie by or against
an executor or administrator is sometimes mentioned as a test as
to whether a cause of action survives; but this is obviously no
test at all, since it must be ascertained whether a cause of
action survives before it can be determined whether an executor
or administrator can sue or be sued thereon. A cause of action
created by statute does not survive unless declared to do so by
the statute itself or unless provision therefor is made by some
other statute."
  Counsel for the board insist that since the cause of action
which they admit Awili Shaw had in her lifetime was created by
statute and is by said statute made unassignable said cause did
not survive, there being no declaration of survival in said
statute or in any other statute.
  They cite the above provision of the statute, the excerpts from
Corpus Juris above quoted and Ingersoll v. Gourley, 72 Wash. 462,
130 P. 743, as the authorities sustaining their
contention.
  The authorities cited unquestionably support the board's
contention. Some other authorities to the same effect are: 1 Am.
Jur., § 80, p. 69, where it is said: "Whether an action survives
depends on the substance of the cause of action, not on the form
of proceeding to enforce it. One test that is quite uniformly
used to determine survivability is whether or not the cause of
action may be assigned. Ordinarily, causes of action which are
not assignable do not survive."
 
  In The People v. Life Indemnity Co., 261 Ill. 513,
104 N.E. 219, it is said: "Where a right of action is so entirely personal
that a person, by contract, cannot place it beyond his control
the action will not survive; that, as a general rule,
assignability and survivability of causes of action are
convertible terms." This was a suit to compel an insurance
company to accept payment of premiums on a policy of insurance on
the life of plaintiff who died while the suit was pending. The
order abating the suit was grounded on the fact that the cause
was so personal to plaintiff that he could not assign it and it
could not therefore be proceeded with after his death. Selden
v. Illinois T. and S. Bank, 239 Ill. 67, 87 N.E. 860, was a
suit by a sister and sole heir-at-law of one Shipman, deceased,
to contest his will. The contestant died pendente lite and her
executor and certain of her heirs were substituted for her. On
appeal the supreme court after holding that the right to contest
a will in Illinois is purely a creature of statute; that causes
of action created by statute do not survive; that causes of
action that are not assignable do not survive and that the right
to continue the prosecution of a suit upon the death of a
plaintiff is limited to those cases in which the cause of action
survives, held that said cause must abate.
  In the Federal courts the survivability of causes of action
created by Act of Congress is tested by the principles of the
common law and is held to survive or not according to those
principles unless the Act giving the causes of action contains a
specific provision for their survival. (1 Am. Jur., § 97, p. 77.)
  The contention of counsel for the board would seem to be the
proper view of the matter unless there are other authorities of
so controlling and decisive a character as to justify the
conclusion that the pension in question, although created by
statute which makes it unassignable,

does not come within the rule announced by the cited authorities.
One of the contentions of counsel for the administrator is based
upon the provisions of section 7917, R.L. 1935, which provides
that whenever the pensioner shall die the amount next payable
shall be prorated from the last payment date up to and including
the date of the death and the sum so prorated shall be paid to
the person or persons in said statute enumerated. The personal
representative of the deceased pensioner is not included in the
enumeration. However, counsel contend that said statute shows
that the legislature did not contemplate the vanishing into thin
air of the right to accrued pensions but expressly provided for
their payment. If said section was applicable to the present
controversy it would clearly preclude recovery by the
administrator. We unhesitatingly hold that it has no application.
The provision, it will be seen, applies in terms only to the
payment of the pension money accruing after the last preceding
payment date. A very similar provision in the Act of Congress of
June 7, 1832, was held to have no application to a controversy
over the money due a pensioner accruing prior to the last payment
date preceding her death. (Foot, Executor v. Knowles, 4 Met.
[Mass.] 386.)
  Decisions from other jurisdictions where statutes have extended
the class of causes of action which survive are of very little
authority in this jurisdiction where we have no statute on the
subject. In Bishop v. Lokana, 6 Haw. 556, it was held that
the Act of 1876 (now R.L. 1935, § 4053 et seq.), providing a
method to be pursued in proceeding with an action after the death
of the plaintiff or defendant, applied only to such actions as
survive to the personal representative of the deceased, that is,
such actions as might originally be maintained by the executor or
administrator and that the maxim actio personalis moritur cum
persona applies except where the remedy is given by statute.

At the time of the decision in the above case (1885) the common
law had not been adopted by statute in this jurisdiction. It was
first adopted in 1892 and now the common law of England as
ascertained by English and American decisions is, by statute,
declared to be the common law here. (R.L. 1935, § 1.)
  At common law where the rule that personal actions die with the
person was ordinarily applied the most notable exception was that
causes of action survived when founded upon contract. Actions of
debt and assumpsit for the money counts also survived. (1 Am.
Jur., § 82, p. 70; Treasurer v. Sheehan, 193 N.E. [Mass.] 46;
96 A.L.R. 534.) As said in American Jurisprudence, supra,
"These were a part of the personal estate in respect of which the
executor or administrator represents the person of the deceased,
and is in law his assignee, and it made no difference whether the
contract was express or implied."
  If it be conceded that the 1917 Act, under which the original
grant of pension to Awili Shaw at the rate of $25 per month was
made, constituted one of the terms of her husband's contract of
employment as a police officer and that hence said sum was based
on contract, it could not be successfully maintained that the
increase in said pension by the Act of 1929 and the explanatory
Act of 1931 was impressed with the same quality. It was more in
the nature of a gratuity. The claim which it is conceded Awili
Shaw could have enforced in her lifetime and which her
administrator now seeks to enforce is not therefore contractual.
In the case of Donnelly v. United States, 17 Court of Claims
Rep. 105, that court, in speaking of the nature of pensions
generally, said: "A pension is a periodical allowance of money to
a person, in the nature partly of a gratuity and partly of
payment for past benefits conferred; payment because it is
supposed to be in consideration of previous services rendered to
the government or the public, for which

the compensation before made, if any, was inadequate in
proportion to the benefits received and the ability of the nation
in its prosperity to pay; a gratuity because it is not ordinarily
founded on contract, and in such case cannot be demanded as a
legal right until the government has acknowledged its moral
obligation and made the grant. As it is purely voluntary, its
payment must be made and accepted in exact conformity with the
terms of the grant, and must be subject to all the limitations,
conditions, and exceptions therein contained."
  In the case of Foot, Executor v. Knowles, supra, the
pension statute involved like our statute made the pension
unassignable and it was held that the executor could recover it
from one to whom the pension authorities had paid it, holding
that the accrued pension was an asset of the estate of the
deceased pensioner. No reference was made to the general
principle that causes of action created by statute or causes of
action not assignable do not survive. The argument was made by
the defendant that the will of the deceased was an assignment of
the accrued pension and was, under the terms of the statute,
void. The court rejected this argument saying that the plaintiff
places his right of recovery upon no title derived through an
assignment but as the representative of the pensioner herself and
to reduce the same to possession as her estate. No authorities
whatever were cited on the question of survival of causes of
action.
  The case of Slade v. Slade, Executor, 11 Cush. (Mass.) 466,
also cited by the administrator, adds nothing to the decision in
Foot, Executor v. Knowles, supra. In this case the situation
was the reverse of the situation that existed in Foot, Executor
v. Knowles, supra, that is, the arrears of pension had been
paid to the executor of the deceased pensioner and one of his
children sued for a part of it on the theory that it should have
been paid to the children

instead of to the executor. In rejecting his claim the court
cited no authority except Foot, Executor v. Knowles, supra.
  3 Pomeroy's Eq. Jur., § 1275, states the rule with reference to
survival of causes of action thus: "All things in action which
survive and pass to the personal representatives of a decedent
creditor as assets, or continue as liabilities against the
representatives of a deceased debtor, are, in general, thus
assignable; all of which do not thus survive, but which die with
the person of the creditor or of the debtor, are not assignable.
The first of these classes, according to the doctrine prevailing
throughout the United States, includes all claims arising from
contract express or implied, with certain well-defined
exceptions; and those arising from torts to real or personal
property, and from frauds, deceits, and other wrongs, whereby an
estate, real or personal, is injured, diminished, or damaged. The
second class embraces all torts to the person or character, where
the injury and damage are confined to the body and the feelings;
and also those contracts, often implied, the breach of which
produces only direct injury and damage, bodily or mental, to
the person, such as promises to marry, injuries done by the want
of skill of a medical practitioner, contrary to his implied
undertaking, and the like; and also those contracts, so long as
they are executory, which stipulate solely for the special
personal services, skill, or knowledge of a contracting party."
  We find nothing in the authorities justifying a conclusion that
the general rule that a cause of action created by statute does
not survive unless there is a statute specifically providing for
its survival and that a cause of action which is unassignable
does not survive should not be applied in this case.
  We accordingly hold that the cause of action, which it is
admitted Awili Shaw had in her lifetime, did not survive.

The cause of action not having survived, her administrator cannot
maintain an action to recover it. A judgment in favor of the
board of trustees of said pension fund may be entered.