Desautel's Adm'r v. Mercure's Estate
| Decision Date | 04 February 1932 |
| Parties | DESAUTEL'S ADM'R v. MERCURE'S ESTATE. |
| Court | Vermont Supreme Court |
Appeal from Chittenden County Court; John S. Buttles, Judge.
Action by Mary L. Desautel's administrator against Arthur Mercure's estate. Judgment for plaintiff, and defendant brings exceptions.
Affirmed.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Adrian J. Simays and Guy M. Page, both of Burlington, for plaintiff.
M. G. Leary, J. A. McNamara, and K. Paul Fennell, all of Burlington, for defendant.
Arthur Mercure murdered Mary Desautels and then committed suicide. She left a husband and two minor children. Her administrator presented to the commissioners of Mercure's estate a claim for damages to the husband and next of kin under G. L. 3314. This claim was disallowed, and an appeal was taken to the county court, where a trial by jury was had resulting in a verdict and Judgment for the plaintiff. The defendant excepted.
The case will be disposed of by the determination of a single question: Did the right given by the statute referred to survive the death of Arthur Mercure? This depends primarily upon the character of that right. The plaintiff's theory is that the statute does not create a new cause of action, but a new right of recovery, a new element of damages. His whole case is built upon this as its foundation. On the other hand, the defendant's theory of the statute is that it creates an entirely new cause of action. And his defense is built on this doctrine as its foundation.
There is much to be said in support of each of these theories. Indeed, much has been said, and each is supported by courts of unquestioned ability. It is impossible to reconcile the numerous decisions to be found in the books, and we shall make no attempt to do so. Our own cases add to the confusion, and, as we shall see, cannot be made to harmonize.
It is confidently asserted that the great weight of authority is contrary to the plaintiff's theory and against his right to pursue the wrongdoer's estate. However this may be, a careful consideration of our own cases discloses a well-established interpretation of G. L. 3314 to the contrary.
This statute was first discussed by this court in Needham's Adm'x v. Grand Trunk Ry. Co., 38 Vt. 294, and upon full consideration, and by what has been referred to as "vigorous reasoning," it was concluded that it created a new cause of action. Despite the statement in the Legg Case, 64 Vt. 652, 24 A. 1016, presently to be referred to, that the question was not involved, it was briefed by both sides, and the conclusion of the court must be taken to have the force of a judicial dictum at least. It seems to have been accepted as the law of this jurisdiction for some sixteen years. It was, in effect, affirmed in Harding v. Townshend, 43 Vt. 536, 542, 5 Am. Rep. 304, where it was said that "the statute gives a new cause 6f action based on a different principle." Again, in Wescott's Adm'x v. Central Vermont Railroad Co., 61 Vt. 438, 440, 17 A. 745, 746, the court said that, "when the death of a person results from the tortious act or neglect of another, two rights of action may arise,—one to recover damages sustained by the deceased at the time of or after the injury and prior to his death; the other, to recover damages to the widow and next of kin."
But in the meantime an unreported case, Haliday's Adm'r v. Dover, general term, 1881, reached the court, wherein the very question here presented was raised and considered. An opinion was prepared in effect overruling some of the conclusions of the Needham Case. The court not being unanimously in favor of this opinion, though a majority agreed to it, it was not published, and the case went off on another...
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