Burke v. Burnham

• Decision Date: 04 December 1951
• Citation: 97 N.H. 203,84 A.2d 918
• Parties: BURKE v. BURNHAM.
• Court: New Hampshire Supreme Court

Page 918

84 A.2d 918

97 N.H. 203

BURKE v. BURNHAM.

Supreme Court of New Hampshire.

Dec. 4, 1951.

Rehearing Denied Jan. 2, 1952.

McLane, Davis, Carleton & Graf and Stanley M. Brown, all of Manchester, for plaintiff.

Devine & Millimet and Joseph A. Millimet, all of Manchester, for defendant.

Maurice A. Broderick, Manchester, amicus curiae, by brief and orally.

DUNCAN, Justice.

The defendant's exception presents the issue of whether a settlement made by the plaintiff's decedent during her lifetime was as a matter of law a satisfaction of damages recoverable in this action, constituting a bar to its maintenance. Since the settlement exceeded the limit of $7,000 placed by statute upon recovery in actions for resulting death, R.L. c. 355, § 13, the defendant asserts that the plaintiff can have no righ of recovery.

There appears to be no dispute that the defendant's liability is that of a joint tort feasor, the other tort feasor having been the person with whom the decedent made her settlement.

The plaintiff claims that the damages suffered by the decedent during her lifetime were substantially in excess of the amount of the settlement.

She maintains that her right of recovery is not limited to damages arising from the death of her testatrix, but that she may also recover in the same action upon a distinct cause of action which accrued to the decedent during her lifetime, and survives to the plaintiff under the provisions of R.L. c. 355, §§ 9 and 11. It is her contention that the $7,000 limitation imposed by section 13 does not extend to this cause of action and that she may be required to give credit for the settlement only against the total damages recoverable on account of both causes.

The defendant disagrees and contends that the seven thousand dollar limitation imposed by section 13 extends to recovery in any action first brought after death, regardless of whether death is claimed or found to have resulted from the injuries alleged.

I. In order to determine how far the settlement made by the decedent before death constituted satisfaction of the plaintiff's rights, it is necessary first to ascertain the nature of those rights. They are controlled by the provisions of R.L. c. 355, §§ 9-14. The history of this legislation has been frequently reviewed in such cases as Piper v. Boston & M. Railroad, 75 N.H. 435, 440, 75 A. 1041; Pitman v. Merrriman, 80 N.H. 295, 117 A. 18, 26 A.L.R. 589; and West v. Boston & M. Railroad, 81 N.H. 522, 524, 129 A. 768, 42 A.L.R. 176. It requires no extended reexamination here.

No action was pending upon the death of the plaintiff's testatrix, so that section 10 is inapplicable. The action now pending was brought in compliance with section 11, and is a 'new action.' The declaration alleges physical injuries to the decedent and that death was caused by them. Under section 12, upon establishment of these facts, the plaintiff is entitled to recover damages as therein provided subject to the limitation imposed by section 13. Damages so recovered (with specified exceptions) belong to and are to be distributed among statutory beneficiaries, as provided in section 14. Cf. Davis v. Herbert, 78 N.H. 179, 97 A. 879. These principles are not disputed by the parties. To the extent that the action is to recover for the death of the decedent, it presents a cause which our decisions plainly indicate was first created by statute in 1887, Laws 1887, c. 71, and which was unknown to the common law. See Clark v. City of Manchester, 62 N.H. 577, 581; French v. Mascoma Flannel Co., 66 N.H. 90, 20 A. 363.

The plaintiff asserts a right to recover also upon a separate cause of action, for the damages suffered by the decedent during her lifetime, which she contends survives by virtue of the provisions of sections 9 and 11 and is an asset of the estate. In support of her position she relies upon West v. Boston & M. Railroad, 81 N.H. 522, 129 A. 768, 42 A.L.R. 176, supra, for the proposition that there is such a cause of action 'of the injured party, which is made to survive'. Id. 81 N.H. 529, 129 A. 772, 42 A.L.R. 176. She argues that it may be joined in a single action with a cause arising out of death, and damages assessed as to each cause, either separately, citing Brown v. Weeks, 79 N.H. 509, 112 A. 393, or in combination.

Although the plaintiff's declaration alleges solely that a cause of action 'has accrued to the plaintiff,' with no reference to any other cause which may have accrued to her testatrix and 'survived' to the plaintiff. Cf. Sawyer v. Concord Railroad, 58 N.H. 517, 519-520, we have considered the dual claims presented in this court since they may be presented below by amendment or otherwise. See Brown v. Weeks, supra.

The issue is whether two such claims may be maintained together in an action brought after death. In our judgment this was not the intention of the legislature.

It is not to be disputed that the cause of action which accrued to the decedent survived her and may be enforced by her executrix by a 'new action' brought after death. § 11. If death in fact resulted from causes other than the personal injuries, the executrix would be entitled to recover only the damages suffered by her testatrix during life and 'to the close of life', Corliss v. Worcester, N. & R. Railroad, 63 N.H. 404, and the rule announced in West v. Railroad, supra, could not apply. But since it is here claimed by the plaintiff that death did result from the injuries, a somewhat broader rule of damages is provided by the statute, although the recoverable amount is limited. §§ 12, 13.

As appears from section 12, the damages recoverable in the death action include several elements of damage which might have been recovered by the decedent in her lifetime. The executrix is entitled to have considered in the assessment of damages: pain and suffering, the probable duration of the decedent's life but for the injury, and her capacity to earn money, and 'other elements [of damage] allowed by law.' § 12.

The Act of 1887 expressly permitted recovery for the benefit of the statutory beneficiaries of 'the expense occasioned to [the deceased] in his life'. Laws 1887, c. 71, § 1. This clause was omitted in the 1891 revision, P.S. c. 191, § 12, but the phrase 'in connection with other elements allowed by law' was added. The report of the commissioners indicates that in this there was no intention to change the law. Comm'rs' Report (1891) iii, 615. See Morrell v. Gobeil, 84 N.H. 150, 151, 147 A. 413. There is thus no reason to believe that expenses occasioned to the decedent during her lifetime are not to be considered in assessing damages under the present section 12. See Yeaton v. Boston & M. Railroad, 73 N.H. 285, 288, 61 A. 522. Since section 12 is the only section dealing with damages recoverable where death has resulted, the phrase 'other elements allowed by law' must refer to elements of damages recoverable in actions where death is not a factor. Clearly the phrase is sufficiently broad to include expenses occasioned to the decedent.

So far as loss of earnings during the decedent's lifetime is concerned, the damages to the beneficiaries are measured by the net amount of the lost earnings, although the decedent would have been entitled to the gross. Morrell v. Gobeil, 84 N.H. 150, 154, 147 A. 413. But as to the 'right to recover for loss of prospective earning capacity', West v. Boston & M. Railroad, supra, 81 N.H. 529, 129 A. 772, 42 A.L.R. 176, caused by the shortening of life expectancy, the measure of damages would appear to be the same whether the loss measured is that to the decedent, or to the beneficiaries.

If the plaintiff is correct in her contention that she may recover against the defendant upon two causes of action, it is evident that the major portion of the damages occasioned by the defendant's wrong may be assessed against him twice: damages for pain and suffering, for expenses occasioned by the injuries, for net earnings lost, and for loss of prospective earning capacity. The damages which the plaintiff could recover in the action brought for the benefit of the estate would duplicate for the most part the damages which the statute provides may be considered as elements of damage in the death action. Conversely, stated, the damages recoverable under the statute in the latter action include all damages which might be recoverable in an action for damages suffered by the decedent while alive. A procedure permitting recovery upon two such causes of action would clearly violate 'the proposition, that the law gives no one more than full payment for damage or loss', Holland v. Morley Button Company, 83 N.H. 482, 485, 145 A. 142, 144, unless it is to be considered that distinct losses were suffered by the estate and by the statutory beneficiaries. The statute however fails so to distinguish or separate rights of the estate and rights of the statutory beneficiaries as to suggest that 'full payment' to each was intended. On the contrary, it expressly provides that damages which would normally be considered assets of the estate shall belong to the statutory beneficiaries.

It gives no indication that two rights of coincidental recovery were intended. Section 11 provides for the bringing of a new action 'for such cause', that is 'for physical injuries to the person'. § 9. So far as this section is concerned, the action may be for personal injuries alone or it may be for such injuries resulting in death. Section 12 contains no provision for the bringing of the action, but defines the damages in actions brought under section 11 where 'death * * * was caused by the injury'. In effect, by enlarging the recoverable damages it permits recovery for death in an action founded upon a cause which arose in the decedent's lifetime and was made to survive by sections 9 and 11. By section 14, all of the damages 'in such case' belong to designated beneficiaries. There is no suggestion in the statute that...