French v. Mascoma Flannel Co.

• Decision Date: 14 March 1890
• Citation: 20 A. 363,66 N.H. 90
• Parties: FRENCH v. MASCOMA FLANNEL Co.
• Court: New Hampshire Supreme Court

20 A. 363

66 N.H. 90

FRENCH

v. MASCOMA FLANNEL Co.

Supreme Court of New Hampshire. Hillsborough.

March 14, 1890.

Case for injuries. The writ is dated August 18, 1888. The declaration alleges negligence of the defendants in the discharge of a duty, whereby the deceased intestate was subjected to mental and bodily suffering, was strangled and drowned, April 28, 1888. The defendants demurred, and assigned for cause of demurrer that the declaration does not allege that the deceased or his administrator, within 60 days after the injuries complained of were received, gave any notice of the time when and the place where the injuries were sustained and the cause thereof.

G. B. French, for plaintiff. J. L. Spring, for defendants.

SMITH, J. At common law, causes of action which affect the estate survive for or against the executor, and those which affect only the person die with the person. Section 16, c. 198, Gen. Laws, (that an administrator may prosecute or defend any action pending for or against the deceased, whether the cause of action does or does not by law survive, if he or the surviving party so elect,) applies only to actions commenced in the life-time of the deceased. If no action has been brought by the party injured where the cause of action does not survive, none can be by his personal representative in the absence of any statute permitting it. Accordingly it was held in Wyatt v. Williams, 43 N. H. 102, that an action by the wife will not lie to recover damages for the killing of the husband, whether caused by a felonious act or by negligence; and in Vittum v. Gilman, 48 N. H. 416, reaffirmed in Jenkins v. French, 58 N. H. 532, that a cause of action against a physician or surgeon arising from want of care or skill in the cure of the patient does not survive against the executor. "The line of demarkation separating those actions which survive from those which do not is that in the first the wrong complained of affects, primarily and principally, property and property rights, and the injuries to the person are merely incidental; while in the latter the injury complained of is to the person, and the property and rights of property affected are incidental:" Jenkins v. French, supra. See, also, Sawyer v. Railroad, 58 N. H. 517, and Clark v. Manchester, 62 N. H. 577. The first innovation in this state upon the common-law rule that a personal action dies with the person, unless section 16, c. 170, Comp. St., (section 16, c. 198, Gen. Laws, identical with chapter 139, Laws 1844; section 16, c. 161, Rev. St; section 16, c. 179, Gen. St.,) is an exception, is the statute of 1850, c. 953, § 7, re-enacted in Gen. St. c. 264, § 14, and again in Gen. Laws, c. 282, § 14, which applied solely to railroad corporations, proceeded by indictment, and imposed a fine for the benefit of the widow and children in case the life of a person not in the employment of the road should be lost by reason of the negligence or carelessness of the proprietors of the road. This statute was expressly repealed in 1879, and in its stead was enacted a statute applying to all persons, natural as well as artificial. Laws 1879, c. 35. It provided that when the death of a person is caused by a wrongful act or neglect of another, which, if death had not ensued, would have entitled the person injured to recover damages therefor, on the death of such person, his execuecutor or administrator may, by suit brought within two years of his death, recover damages for the injury, for the benefit of his widow, children, and heirs. The act of 1885, (chapter 11,) providing that "no action or cause of action shall be lost by the death of either party, but the same shall survive for or against the personal representatives of the deceased," removed every bar imposed by the common law to the bringing of actions by an executor or administrator for personal injuries resulting in death. The time for bringing such actions, instead of being limited to two years from the death of the person injured, was left to be governed by the general statute which provides that all personal actions except actions of trespass to the person and actions for defamatory words may be brought within six years after the cause of action accrued. Gen. Laws, c. 221, § 3. If there had been no other legislation upon the subject, the plaintiff might recover under his declaration which sets forth the common-law cause of action; but in 1887 the act of 1879 was expressly repealed, and in its stead was enacted a statute giving to the executor or administrator of a person whose death is caused by the wrongful...