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Shelton v. Green

Supreme Court of Alabama

November 9, 2017

Leigh A. Shelton, as personal representative of the Estate of Margaret D. Blansit, deceased
v.
I. E. Green

         Appeal from DeKalb Circuit Court (CV-15-900002)

          SELLERS, JUSTICE

         Leigh A. Shelton, as the personal representative of the estate of Margaret D. Blansit, deceased, appeals from a judgment in favor of I.E. Green in a personal-injury action brought by Shelton seeking damages for injuries Blansit allegedly suffered in a slip-and-fall accident at Green's residence. We affirm.

         In January 2015, Shelton, as the personal representative of Blansit's estate, sued Green. Shelton alleged that, before Blansit's death, Blansit suffered injuries when she fell at Green's residence. It is undisputed that, before Shelton filed her complaint, Blansit died of causes unrelated to the fall. Green filed a motion for a judgment on the pleadings, arguing that Blansit's cause of action abated upon her death. The trial court agreed and granted Green's motion. Shelton appealed.

         "[O]riginally at common law ... actions for personal injury did not survive the death of the plaintiff." King v. National Spa & Pool Inst., Inc., 607 So.2d 1241, 1244 (Ala. 1992) (describing the Court's opinion in Ex parte Adams, 216 Ala. 241, 113 So. 235 (1927)). See also McDowell v. Henderson Mining Co., 276 Ala. 202, 204, 160 So.2d 486, 488 (1963) ("Under the common law rule, followed in this State, 'no action could be maintained, by an executor or administrator, to recover damages for an injury, done either to the person or the property of his testator or intestate--the action died with the person--and this principle applied as well when the deceased was the aggressor, as when he was the party injured.'" (quoting Blakeney v. Blakeney, 6 Port. 109, 116 (Ala. 1837))). In 1867, this Court stated:

"The common-law maxim is, that personal actions die with the person. But this maxim has been modified, both in England and in this State, by statutory enactments. Section 2157 of the Code [of 1852] is as follows: 'All actions on contracts, express or implied, all personal actions, except for injuries to the person or reputation, survive in favor of and against the personal representatives.'"

Garrison v. Burden, 40 Ala. 513, 515 (1867).[1] This Court discussed subsequent changes to the language of the statute addressing the survival of actions (sometimes hereinafter referred to as "the survival statute") in a 1910 opinion:

"Our statute on the subject [of the survival of actions] is as follows, Code [of 1907], § 2496: 'All actions on contracts, expressed or implied; all personal actions, except for injuries to the reputation, survive in favor of and against the personal representatives.'
"Prior to the adoption of the present Code, the words 'person' 'and' preceded the word 'reputation.' These words were stricken out of the statute by the code committee ...."

Wynn v. Tallapoosa Cty. Bank, 168 Ala. 469, 491-92, 53 So. 228, 237 (1910).

         That an individual's "action" for injuries to the person survives his or her death, however, does not mean that unfiled "causes of action" survive the death of a potential plaintiff. "An 'action' is a proceeding pending in court to determine the parties' rights and liabilities with respect to a legal wrong or cause of action. A 'cause of action' is a legal wrong for which an 'action' may be, but has not been, brought in court." McDowell, 276 Ala. at 204, 160 So.2d at 488. In Wynn, supra, this Court stated: "[O]ur statute as to the survival of 'actions' does not include 'causes of actions, ' or 'rights of action.'" 168 Ala. at 491, 53 So. at 237. Likewise, in 1931, this Court said: "Our [survival] statutes ... do not deal with the survival of causes of actions, but with pending actions, and leave the question as to the survival of causes of actions to the established principles of the common law." Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 692, 138 So. 270, 271 (1931).

         The Court in McDowell, supra, noted that a 1951 amendment to the survival statute expressly acknowledged that unfiled causes of action based on contract survive the death of the holder of the cause of action and provided further that unfiled personal causes of action survive the death of the tortfeasor. The amendment, however, did not change the rule that an unfiled cause of action based on personal injury does not survive the death of the holder of that cause of action:

"Section 150, Tit. 7, as amended, supra, provides as follows:
"'All actions and causes of action on contract, express or implied, and all personal actions, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal causes of action survive against the ...

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