Simons v. Kidd , 73 S.D. 41 ( 1949 )

It appears to me that the majority opinion gives no effect whatever to the words "or injury", added to SDC 37.2201 by Ch. 172, Session Laws of 1947.

I think that the cardinal rules of statutory construction, adhered to in Re Dwyer, 49 S.D. 350, 207 N.W. 210, forestall a disregard of the specific legislative intent made manifest by the declared purposes of the amending enactment and the wording of the amendment. Also, I cannot read in Ch. 173, Session Laws of 1947, a nullification of that which is added in the previous chapter.

The title to said chapter 172 specifically declares that the same relates, among other things, to recovery of damages for injury to a person. From the title to chapter 173 it is quickly plain that the same relates only to matters incident to "Actions for Damages for Death by Wrongful Act." A comparison of these two titles encourages a belief on my part that the legislature, not unwittingly but with care, stated that chapter 172 related to recovery of damages for injury to a person, and more — "and Providing for Survivorship."

By the provisions of SDC 37.2201, unamended, a right of action for wrongful death survived the death of the wrongdoer. In addition to the words "or injury" inserted in the body of the existing law the amending act provides in an added paragraph that actions for wrongful death or personal injury shall survive the death of the wrongdoer. The words emphasized were, as I see it, purposely included as expressive of the intention of the legislature, as stated in the title to the amending act, to provide for recovery of damages for personal injury notwithstanding death of the person injured.

There is no room for disagreement about what the law was before the legislature passed the amending act. It may also be a matter of common accord that the legislative body might well have made provisions of law respecting a limitation of recovery and the proper party plaintiff in suits for wrongful injury resulting in death and might also have specified that recoveries in such suits should be passed along to dependents, heirs or the estate of the person who suffered the wrongful injury. The fact that these matters were not subjects of legislation does not, however, lead me to the view that the additions to SDC 37.2201 are insignificant and meaningless.

The sole question is whether said chapter 172 was intended to and did change the law as last declared in Petersen v. Kemper,70 S.D. 427, 18 N.W.2d 294. It is perhaps a fair inference that the session of the legislature next following the opinion in the cited case was called upon to abandon the rule that a right of action for personal injury abates with death. Regardless of the inference, SDC 37.2201, as amended, with respect to the right to recover damages for wrongful injury, in legal effect declares: "Whenever injury to a person is caused by the act of another, for which act and resultant injury damages were recoverable on the part of the injured person if death had not ensued, the corporation which or person who may have been answerable for such damages shall be liable to an action therefor notwithstanding the death of the injured person."

I think, therefore, that the legislative body of this state sought to provide that death of the person wronged should no longer raise a shield of immunity in favor of the wrongdoer and thus defeat reasonable recovery for financial and other losses directly brought about as a result of the personal injury.

My view is that the ruling of the learned trial court should be affirmed.