*Present: Fisher C.J. and Drieberg J.FERNANDO v. LI VERA et al.
,138—D. C. Negombo, 1,551.
Actio personalis—Death of plaintiff—Patrimonial loss—Lex Aquilia.
Where, in an action to recover damages for injuries inflicted bythe defendant, the plaintiff died after service of summons, theaction may be continued by the heirs in respect of the claim forpatrimonial loss to the estate of the deceased.
HE plaintiff sued the defendants for the recovery of a sura of
Bs. 2,564.50, damages sustained by him as the result of anassault on him by the defendants. The plaintiff alleged thatowing to the injuries inflicted he was disabled from doing anywork and also that he had incurred expense in having hisinjuries treated. After service of summons but before answer wasfiled the plaintiff died. The appellant, his widow, then applied tobe substituted as plaintiff and to be allowed to continue the action,limiting the claim to Bs. 728.50, which was the amount that couldbe claimed on so much of the cause of action as survived to his legalrepresentative. Her application was disallowed.
( 247 )
Rajapakse, for appellant.—The petitioners confine their olaimto damages sustained by the plaintiff's estate. Damages are notclaimed on account of injuria in the limited sense, viz., wrongs tothe honour of a person and those in which there was anelement of insult (contumeliii). In the latter case the cause ofaction is extinguished by the death of the party. The petitionersrestrict their claim to actual expenses incurred by the deceased andloss of income. Counsel cited Morice’s English and Roman-Dutchlaw and Dc Villiers on Injuries and 4 Maasdorp, p. 19..
Croon Da Brera, for respondent.—The word injuria is used in abroad sense by Voet (see De Villiers), no exception is made in thecase of wrongs to persons. The general rule appears to be that inall actions for damages for injuria the death of the party injureddefeats the action. The plaintiff died before litis contestatio andthe right of action is extinguished. Litis contestatio arises afterclose of pleadings (8 Nathan 1597; Banda t>. Coder, 16 N. L. R. 79).
Rajapakse in reply.—The rule as to litis contestatio applies in thecase of an action for damages for injuria involving contumelia andnot where damages are claimed for patrimonial loss.
October 7r 1027. DaiEfiEiia A.J.—
The plaintiff brought this action on March 17, 1927, for therecoveiy of Bs. 2,664.50, damages sustained by him as the resultof an assault on him by the defendants respondents, on October 11,1926; the plaint alleged that as the result of injuries inflicted onthe plaintiff, he was disabled from doing any kind of work andwould not be able to follow his usual occupation for about three anda half years; also that he had incurred expenses in having his injuriestreated.
After service of summons but before answer was filed the plaintiffdied. The appellant, his widow, then applied to be substituted asplaintiff with her minor child and to be allowed to continue thenotion, limiting her claim to Bs. 728.60, which she said was theamount which could be claimed on so much of the cause of actionas survived to his legal representative. Her petition does not netout the claim fully, but it is clear that the intention was to limit itto medical expenses and other matters which diminished the valueof his estate and thereby caused what is known in the Boman-Dutchlaw as patrimonial loss.
The appellant's application was dismissed on the ground that theclaim was one for damages sustained by the appellant and herchild by the death of the plaintiff and that therefore, though ahecould herself bring an action for relief, she could not as the legalrepresentative of the plaintiff continue the action brought byhim.
( 248 )
IMS. The learned Hjistriet Judge was .led into this error by anDmtomo observation of Counsel that the plaintiff had died as the result ofA.J. the injuries; even if this was the fact the order is not right for theFernando v. Action was not one of that nature and the appellant sought relief asLivtra. regards a part of the claim which the plaintiff made in his life time.
. iVfr. Croos Da Brera .for the respondents could not support theorder on this ground. He, however, contended that as this was anaction of injury, the cause of action would only survive if the plaintiffdied after litis contestatio and that the plaintiff died before that stagein the action was reached.
This rule of law however only applies to that class of actionsof injury sudh as libel and slander which have for their objectreparation for a sentimental .hurt independent of any patrimonialloss. Where the wrongful lots has caused patrimonial loss andcomes within the principles of the hex Aquilia the action does notlapse with the death of the plaintiff before litis contestatio butenures: to the benefit of the heirs. The difference between the twoclasses of actions is fully explained in de Villiers, Roman and Roman-Dutch law of injuries, *pp.~.182, '.183, 235, 236, and MaasdorprInstitutes of Cape law,- voL IV., p. 19.
The petitioner and her, child as the heirs of the plaintiff aretherefore entitled to be substituted as plaintiffs and to continue theadtion for the recovery of such damages as they are by law entitledto claim.
The case will go back for the substitution of the petitioner andher child as plaintiffs and for .further proceedings.
• As .the claim is now limited to.Rs. 728.50, the action will continuefor the purpose of all costs, duties, and charges as if it was broughtfor that amount.
The respondents will pay,to the petitioner her costs of the appeal. aijd of the proceedings of July 27.