Boyden v. Fitchburg R. Co.

• Decision Date: 22 January 1898
• Parties: BOYDEN v. FITCHBURG R. CO.
• Court: Vermont Supreme Court

39 A. 771

70 Vt. 125

BOYDEN

v. FITCHBURG R. CO.

Supreme Court of Vermont. Windham.

Jan. 22, 1898.

Exceptions from Windham county court; Start, Judge.

Case upon V. S. &§ 2451, 2452, by George A. Boyden against the Fitchburg Railroad Company, for negligently killing the intestate, to the damage of his father as next of kin. Heard on demurrer to the defendant's second, third, fourth, seventh, and eighth pleas and a motion to dismiss the fifth and sixth pleas, at the September term, 1896, Windham county, Start, J., presiding. Pro forma judgment sustaining the demurrer and motion, adjudging the second, third, fourth, seventh, and eighth pleas insufficient, and dismissing the fifth and sixth pleas. The defendant excepted. Reversed in part.

The fourth plea alleged that the accident occurred upon the Sabbath, when the intestate was in the act of traveling upon the highway, not engaged in any work of necessity or charity, but solely in the pursuit of pleasure. The fifth and sixth pleas alleged that the intestate was of full age, and not under any contract to serve his father; that he was a nonresident of the state, and had not been charged by the judgment of any court with his father's support; and that the father himself was not chargeable as a pauper upon any town in this state. The seventh and eighth pleas sufficiently appear in the opinion.

Waterman, Martin & Hitt, for plaintiff.

Batchelder & Bates, for defendant.

MUNSON, J. The only question made as to the sufficiency of the declaration is based upon the theory that the action cannot be maintained if the injured person survived for the shortest period of time. An examination of Legg v. Britton, 64 Vt. 652, 24 Atl. 1016, will show that this view is unfounded. The plaintiff claims that the fifth and sixth pleas are dilatory in their nature, and should have been dismissed because filed out of time; but claims further that, if the pleas are considered, they do not answer the declaration. We think the pleas are to be treated as pleas in bar, and that as such they are insufficient. They are drawn upon the theory that there can be no recovery unless the deceased owed his father some duty at the time of his death. But it is not necessary that the next of kin should have had a legal claim upon the deceased for service or support. It may be shown that there was a reasonable expectation of deriving some pecuniary advantage from the deceased, and the destruction of such expectation will sustain the action. Rowe v. Moses, 67 Am. Dec. 568, note; Railway Co. v. Goodykoontz (Ind. Sup.) 12 Am. St. Rep. 378, note (s. c. 21 N. E. 472); Franklin v. Railway Co., 3 Hurl. & N. 211, 8 Eng. Ruling Cas. 419, and note.

It is claimed that the seventh and eighth pleas are bad, as amounting to the general issue. The defendant meets this claim by saying that they are special issues. A speclal Issue consists of a direct denial of some material and traversable allegation, never advances new matter, and concludes to the country. Kimball v. Railroad Co., 55 Vt. 95. The declaration alleges that the intestate and the driver of the team were in the exercise of due care at the time of the accident The pleas in question allege various facts and circumstances tending to show that they were not in the exercise of due care; and, as an inference from those facts and circumstances, it is further alleged that neither of them was in the exercise of due care, but that both were guilty of contributory negligence. The pleader probably regarded these pleas as advancing new matter, and not as mere denials of the allegation of due care, for he concludes them with a verification instead of to the country. Treating them as new matter, they are bad, as amounting to the general issue, as such matter is in denial of what the plaintiff would be bound to prove on the general issue in order to support his case. 1 Chit. PI. 527; Gould, P1. c. 6, § 78; Kimball v. Railroad, above cited; Burton v. Bostwick,...