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Necaise v. Sacks3/27/2003
ed succinctly, in citing these four statutes and the cases of Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935), and, Owen v. Abraham, 233 Miss. 558, 102 So.2d 372 (1958), Dr. Sacks and MOG assert that Freeman's personal injury claims could be maintained after his death only by Necaise as executrix of Freeman's estate, and since she never did so, the claims are now barred under both the general medical malpractice statute of limitations and the estate savings statute.
. In Berryhill, the next of kin of a man who had been accidentally shot and later died brought a medical malpractice suit against the attending physician. This Court held that there was insufficient evidence to show that the death was proximately caused by any negligence on the part of the physician, but this Court went on to state:
And as to any pain and suffering of the deceased endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under section 1712, Code 1930, at a suit by the personal representative, not by the next of kin or heirs at law. 158 So. at 471.
In Owen, Mitchell Owen's wife sued him for divorce . After the hearing, the chancellor took the case under advisement for entry of a final decree in vacation. By the time the chancellor rendered his opinion, Owen had died. While the chancellor noted the fact of Owen's death in his opinion, the chancellor still awarded alimony to Owen's wife to be assessed against "the defendant and/or the defendant's estate." Owen's counsel attempted an appeal to this Court, claiming that at the time of the chancellor's entry of the decree against Owen and his estate, there was already a named executor of his estate as duly appointed by the chancery court, and that Owen's wife had made no effort to properly revive the action against the executor. This Court found that it did not have jurisdiction to hear the appeal because the entry of "the final decree and subsequent proceedings amount to a nullity." 233 Miss. at 561, 102 So.2d at 373. In reaching this conclusion, this Court quoted extensively from Griffith's Mississippi Chancery Practice and stated:
Inasmuch as the defendant died before the chancellor reached a decision, the cause should have been revived against the duly acting executor.
Griffith's Mississippi Chancery Practice, Section 591 says in part: 'In order that there may be any decree for the complainant it must be shown in proof that he actually has the interest upon which he sues, and the defendant must be shown, at least by the pleadings, to have some germane litigious concern therein. It follows from this rule, even if there were no other, that litigation is not to be carried on by or against any deceased person. The impossibility of such a thing is apparent however upon its mere mention. There must be revivors in such suits or else further proceedings therein amount to nothing. Thus, if a defendant die during pendency of a suit and there is no revivor or amendment, but only an unwarranted effort to carry on the suit by substituting a new party to the suit, - not one claiming by or under the former defendant, - the proceeding is entirely erroneous.' Section 620 of the same text says in part: 'And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit - although the interlocutory decree were rendered while he was alive.' 233 Miss. at 561, 102 So.2d at 373 (citations omitted).
. Dr. Sacks and MOG also direct this Court to Wilks v. American Tobacco Co., 680 So.2d 839, 843 (Miss. 1996), wherein this Court held in a wrongfu
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