Chase v. Inhabitants of Town of Litchfield

• Decision Date: 21 January 1936
• Citation: 182 A. 921
• Parties: CHASE v. INHABITANTS OF TOWN OF LITCHFIELD.
• Court: Maine Supreme Court

182 A. 921

CHASE

v. INHABITANTS OF TOWN OF LITCHFIELD.

Supreme Judicial Court of Maine.

Jan. 21, 1936.

Exceptions from Superior Court, Kennebec County.

Action by Albert B. Chase, administrator, against the Inhabitants of the Town of Litchfield. Judgment for defendant, and plaintiff brings exceptions.

Exceptions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Currier C. Holman, of Farmington, and Hiram Willard, of Sanford, for plaintiff.

Goodspeed & Fitzpatrick, of Gardiner, for defendant.

HUDSON, Justice.

By his declaration, the plaintiff alleged that the intestate decedent, Albert B. Chase, on August 11, 1934, while in an automobile driven by one Dixon on a state-aid highway in the town of Litchfield, received injuries, proximately resulting from acts of negligence upon the part of the "municipal officers, the road commissioners and the man having charge of the highway at the authorization of the municipal officers" by not removing or safeguarding against or warning of certain large rocks in and by the highway then under construction, with which rocks the automobile collided and overturned, causing the immediate death of Mr. Chase without conscious suffering. The defendant, by general demurrer to the declaration, challenged its sufficiency in law. The case now is before this court on exceptions to the sustaining of the demurrer.

It is to be noted at the outset that this action is not based on the "life lost" clause in our "defective highway" statute (Rev. St. 1930, c. 27, § 94), but rather upon our "general death" statute (Lord Campbell's Act), originally enacted in this state in 1891 (chapter 124, Pub.Laws 1891), and now appearing in Rev.St.1930 in sections 9 and 10, c. 101. Section 9 (originally section 1 in the first enactment and unchanged since then) reads as follows: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as shall amount to a felony."

While much else has been argued, we think that the ruling of the court below may be justified by consideration and interpretation of the following words in the statute, viz.: "the person who, or the corporation which."

It could not be and is not claimed that at common law there was liability for the death itself. Nickerson v. Harriman, 38 Me. 277; Lyons v. Woodward, 49 Me. 29; State v. Grand Trunk Ry. Co. of Canada, 58 Me. 176, 4 Am.Rep. 258; Frazer v. Inhabitants of Lewiston, 76 Me. 531; McKay, Adm'r, v. New England Dredging Co., 92 Me. 454, 43 A. 29; Bligh v. Biddeford & Saco R. Co., 94 Me. 499, 48 A. 112; Anderson, Adm'x, v. Wetter, Receiver, 103 Me. 257, 69 A. 105, 15 L.R.A.(N.S.) 1003; Perkins, Adm'r v. Oxford Paper Company, 104 Me. 109, 71 A. 476; Hammond, Adm'x, v. L., A. & W. Street Railway Co., 106 Me. 209, 76 A. 672, 30 L.R.A. (N.S.) 78; Curran, Adm'r, v. L., A. & W. St. Ry. Co., 112 Me. 96, 90 A. 973; Danforth, Adm'r, v. Emmons, 124 Me. 156, 126 A. 821; Ames, Adm'r, v. Adams, 128 Me. 174, 146 A. 257.

The purpose of this statute was to make possible recovery for death in certain cases, not all. A "person" or "corporation" whose "wrongful act, neglect or default" has resulted in death (immediate and without conscious suffering) is by the statute made liable to the personal representative of the deceased, if the act, neglect, or default were such as would, if death had not ensued, have entitled the party injured to maintain an action.

This is an action against a town. The statute does not expressly make the state or any subdivision of it, as a county, a city, a town, or a plantation, liable. A town may be liable under it only if it be held that the Legislature, by use of the words "person" or "corporation," intended to include a town.

Whether or not the word "person" as here used includes a town raises no difficulty.

"Where these two words occur together ['person' or 'corporation'], corporation is the only word which can be contended to include a city or town, notwithstanding R. L. c. 8, § 5, cl. 16." Donohue, Adm'r v. City of Newburyport, 211 Mass. 561, 566, 98 N.E. 1081, 1082, Ann.Cas. 1913B, 742.

The Massachusetts statute cited corresponds to our rule of statutory construction that "the word 'person' may include a body corporate." Rev.St.1930, c. 1, § 6, subd. 14.

Did the Legislature intend by the use of the word "corporations" to include towns ?

"New England towns are public corporations and were either original, constituent parts of the state, or have been incorporated by the legislatures of the states in which they are situated. The oldest of them long antedate the states themselves to which they belong." Garland on New England Town Law, p. 17.

Corporations "is a word which in our statutes and decisions has not been used generally to include cities and towns. In a certain sense they are bodies corporate. But in common speech it is rarely that a city or town is referred to merely as a corporation. Towns in New England differ in their nature from trading, manufacturing or public service corporations, and even from municipal corporations elsewhere. They are created primarily for political purposes and the convenient administration of government. They possess few of the characteristics which distinguish the ordinary corporation." Donohue v. City of Newburvport, supra, 211 Mass. 561, 566, 98 N.E. 1081, Ann.Cas. 1913B, 742.

"In common parlance, towns, cities and other municipal organizations are not known as corporations; they are spoken of not uncommonly by text writers in the law as quasi corporations." Linehan v. City of Cambridge, 109 Mass. 212, 213.

In the case just cited, the Massachusetts court held that the word "corporation" in a statute authorizing the interrogating of officers of corporations did not include a municipal corporation.

"It has been a general rule in our legislation that statutes passed for the regulation of the rights and liabilities of corporations are to be applied only to private or moneyed corporations and not to public or municipal corporations or quasi corporations." O'Donnell, Adm'r, v. Inhabitants of North Attleborough, 212 Mass. 243, 245, 246, 98 N.E. 1084, 1085.

In Franklin Savings Bank v. Inhabitants of Framingham, 212 Mass. 92, 98 N.E. 925, it was held that the word "corporation" in the Negotiable Instrument Act did not include cities and towns.

Of all the actions that have been brought in Maine under the Lord Campbell Act, we have discovered none against a town; so the question before us is novel in this state.

In Linehan v. City of Cambridge, supra, and in O'Donnell v. Inhabitants of North Attleborough, supra, considerable emphasis is laid upon the fact that the laws pertaining to towns are collected and classified by themselves in the statutes. In the three revisions of our statutes since the enactment of this law in 1891, it has been inserted under title "Civil Rights and Remedies" and the particular chapter in which it has appeared is entitled "Actions by or Against Executors and Administrators." Nothing in this chapter relates to municipalities, nor anything in the other twenty-nine chapters under this title save one, chapter 97 (Rev.St.1930), which has to do only with municipal and police courts and trial justices. On the other hand, the statutes relating to towns are properly segregated in "Title One" entitled "The State; Its Sovereignty and Government; Citizenship; Voting; Taxes." Quite apart, private corporation statutes are found in "Title Four" together with banking, insurance, railroad, telegraph, telephone, water, navigation, and public service company statutes. Such separation and segregation are not accidental. Their utter dissimilarity accounts for it. It is so marked that leading authors and commentators (vide Dillon and Morawetz; McQuillan and Thompson) have dealt with each as a separate and independent subject. In law schools these subjects are taught in separate courses. Widely different and separate statutes provide for their organization and dissolution. Their reasons for being are unlike, the one to serve the public and its interest, the other its private owners, its stockholders. The conduct of business of the one and the other differs materially as well as the manner of election of their officers and the performance of their duties.

"It is true that all cities and towns must possess for the discharge of municipal duties certain limited corporate powers, co-extensive with the duties imposed. But the main purpose of their organization is political, and that organization always embraces the inhabitants who for the time may be within the territorial limits into which the legislature, according to its own views of public convenience, may have divided the Commonwealth. The inhabitants do not, like the members of a private corporation, derive private or personal rights under the act of incorporation, the sole office and object of which is to regulate the manner of performing public and political duties. While exercising corporate powers to the extent indicated, they yet differ distinctively and widely from private and moneyed corporations, both in organization, government and mode of action." Linehan v. City of Cambridge, supra, 109 Mass. 212.

In Eames v. Savage, 77 Me. 212, 218, 52 Am.Rep. 751, Justice Emery said: "Towns, however, are not full corporations. They have no capital stock, and no shares. They are only quasi corporations,—created solely for political and municipal purposes, and given a quasi corporate character for convenience...