Brown v. Weeks

• Decision Date: 07 December 1920
• Docket Number: No. 1677.,1677.
• Parties: BROWN v. WEEKS.
• Court: New Hampshire Supreme Court

112 A. 393

BROWN

v. WEEKS.

No. 1677.

Supreme Court of New Hampshire. Hillsborough.

Dec. 7, 1920.

Exceptions from Superior Court, Hillsborough County.

Action by Myra Brown, executrix, against R. William Weeks. Verdict for defendant, and plaintiff brings exception. Exception sustained and verdict set aside.

Case against the defendant as a physician and surgeon for negligent treatment of the intestate, as a result of which he suffered and died. Trial by jury in the superior court at the January, 1920, term. Verdict for the defendant. Case transferred by Kivel, C. J. There was evidence that the treatment was begun June 13, 1914, following an accident which lacerated the intestate's linger. He died on the 23d of the same month. The evidence as to the defendant's treatment and as to the cause of death was conflicting; the defendant claiming that it was due to a type of blood' poisoning contracted at the time of the accident and that for that cause death was inevitable, and' the plaintiff claiming the death and the suffering of the intestate was due to the negligent treatment of the defendant. The court charged the jury that in order for the plaintiff to recover they must be satisfied that death resulted from the negligent treatment of the defendant. To this the plaintiff excepted, and requested the court to instruct the jury that if the defendant was negligent in his treatment of the deceased, even though death was bound to result, the plaintiff might recover for the added pain and suffering due to that negligence. The court refused to so charge, and the plaintiff excepted.

Warren, Howe & Wilson, of Manchester, for plaintiff.

Timothy P. O'Connor, of Manchester, for defendant.

WALKER, J. The action was brought to recover damages for the death of the intestate and for the pain and suffering caused by the negligence of the defendant which, it was alleged, resulted in the intestate's death, but which the jury found did not have that effect. If the suit had been originally brought to recover for the pain and suffering alone, it could not be doubted that the cause of action would survive under sections 8-10, c. 191, P. S. Piper v. Railroad, 75 N. H.435, 440-444, 75 Atl. 1041. But the fact that recovery was also sought for the death under section 12 does not preclude a recovery under other sections for the pain and suffering caused by the defendant's negligence when death did not result therefrom. Stewart v. Lee, 70 N. H. 181, 183, 46 Atl. 31. The two...