1927 Present: Fisher C.J. and Drieberg J.

FERNANDO v. LIVER A 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 by the defendant, the plaintiff  died after service of summons, the action may be continued by the heirs in respect of the claim for patrimonial loss to the estate of the deceased.

THE plaintiff sued the defendants for the recovery of a sum of Rs. 2,564.50, damages sustained by him as the result of an assault on him by the defendants. The plaintiff alleged that owing to the injuries inflicted he was disabled from doing any work and also that he had incurred expense in having his injuries treated. After service of summons but before answer was filed the plaintiff died. The appellant, his widow, then applied to be substituted as plaintiff and to be allowed to continue the action, limiting the claim to Rs. 728.50, which was the amount that could be claimed on so much of the cause of action as survived to his legal representative. Her application was disallowed.

Rajapakse, for appellant.-The petitioners confine, their claim to damages sustained by the plaintiff's estate. Damages are not claimed on account of injuria in the limited sense, viz., wrongs to the honour to a person and those in which there was an element of insult (contumelies). In the latter case the cause of action is extinguished by the death of the party. The petitioner) restrict their claim to actual expenses incurred by the deceased and loss of income. Counsel cited Morice's English and Roman-Dutch law and De Villiers on Injuries and 4 Maasdorp, p. 19.

Croat Da Brera, for respondent,-The word injuria is used in a broad sense by "Vote (see De Villiers), no exception is made in the case of wrongs to persons. The general rule uppers to be that in all actions for damages for injuria the death of the party injured defeats the action. The plaintiff died before litis contestatio and the right of action is extinguished. Litis contestatio arises after close of pleadings (3 Nathan 1597; Banda v. Cader, 16 N. L. R. 79).

Rajapakse in reply.-The rule us to Litis contestatio applies in the case of an action for damages for injuria involving contumelia and not where damages are claimed for patrimonial loss.

October 7, 1927. DRIEBERG A.J.-

The plaintiff brought this action on March 17, 1927, for the recovery of Rs. 2,564.50, damages sustained by him as the result of an assault on him by the defendants respondents, on October 11, 1926; the plaint alleged that as the result of injuries inflicted on the plaintiff, he was disabled from doing any kind of work and would not be able to follow his usual occupation for about three and a half years; also that he had incurred expenses in having his injuries treated.

After service of summons but before answer was filed the plaintiff died. The appellant, his widow, then applied to be substituted as plaintiff with her minor child and to be allowed to continue the action, limiting her claim to Rs. 728.50, which she said was the amount which could be claimed on so much of the cause of action as survived to his legal representative. Her petition does not set out the claim fully, but it is clear that the intention was to limit it to medical expenses and other matters which diminished the value of his estate and thereby caused what is known in the Roman-Dutch law as patrimonial loss.

The appellant's application was dismissed on the ground that the claim was one for damages sustained by the appellant and her child by the death of the plaintiff and that therefore, though she could herself bring an action for relief, she could not as the legal representative of the plaintiff continue the action brought by him.

The learned District Judge was led into this error by the observation of Counsel that the plaintiff had died as the result of th