Hammond v. Lewiston, A. & W. St. Ry.

• Decision Date: 07 December 1909
• Citation: 106 Me. 209,76 A. 672
• Parties: HAMMOND v. LEWISTON, A. & W. ST. RY.
• Court: Maine Supreme Court

76 A. 672

106 Me. 209

HAMMOND

v. LEWISTON, A. & W. ST. RY.

Supreme Judicial Court of Maine.

Dec. 7, 1909.

Report from Supreme Judicial Court, Kennebec County.

Action by Flora E. Hammond, Administratrix, against the Lewiston, Augusta & Waterville Street Railway. On report. Nonsuit.

Action under Rev. St. c. 89, §§ 9, 10, relating to the death of a person caused by "wrongful act, neglect, or default." The plaintiff's declaration is as follows:

"In a plea of the case for that the said defendant on the 15th day of October, 1908, at said Winthrop, was a street railway company engaged in operating its passenger cars on its tracks through the town of Winthrop, crossing at grade the highway from Augusta to Winthrop at a point several hundred feet east of the junction of the 'Baileyville Road,' so called, with said Augusta and Winthrop highway, and the plaintiff's testate was then and there, in the exercise of due care, driving easterly along said Augusta and Winthrop highway and crossing the track of the defendant; yet the defendant so carelessly and negligently operated one of its said cars that said car struck the said plaintiff's testate and the carriage in which lie was driving and ran over him and immediately killed him; and the plaintiff avers that the death of said Harold E. Martin was caused solely by the wrongful act, neglect, or default of said defendant, and that said act, neglect, or default was such as would, if death had not ensued, have entitled said Harold E. Martin to maintain an action against said defendant and recover damages in respect thereof; and the plaintiff further avers that there is living no widow or child of said Harold E. Martin, and that this action is brought for the benefit of Flora E. Hammond aforesaid, who is the only heir at law of said Harold E. Martin."

Writ dated January 30, 1909.

The defendant demurred, and also filed a motion to dismiss and also a motion to abate, each of said motions being based on the following reasons:

"(1) That on said 15th day of October, A. D. 1908, the said Harold E. Martin then had a widow living and no child.

"(2) That said widow has since deceased and was not living at the date of the writ.

"(3) That said alleged cause of action did not survive for the benefit of said Flora E. Hammond."

By agreement of the parties the case was reported to the law court "to determine whether the action shall stand for trial, or entry be made 'plaintiff nonsuit.'"

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE, SPEAR, CORNISH, KING, and BIRD, JJ.

Williamson & Burleigh, for plaintiff.

Heath & Andrews, for defendant.

CORNISH, J. This is an action brought under Rev. St. c. 89, §§ 9, 10, by the administratrix of the estate of Harold E. Martin for the benefit of herself as his sole heir at law at the date of the writ. Plaintiff's intestate was instantaneously killed by being struck by a car of the defendant at the date alleged in the declaration. He left a widow but no children. Subsequently the widow died, no administration then having been taken out upon her husband's estate and no suit having been brought for her benefit. After the death of the widow, the plaintiff the sister of said Martin and his sole heir at law was appointed administratrix of his estate and began this action. The case comes to the law court on report, and the single question presented is whether on the foregoing facts, this action, if maintainable on the merits, can be maintained for the benefit of the plaintiff as such sole heir. If it can be maintained the action is to stand for trial, if not, the entry of plaintiff nonsuit is to be made.

The language of Rev. St. c. 89, §§ 9, 10, which is the basis of this action, is as follows:

"Sec. 9. 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.

"Sec. 10. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of his widow, if no children, and of the children, if no widow, and if both, then of her and them equally, and, if neither, of his heirs. The jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the persons for whose benefit such action is brought, provided, that such action shall be commenced within two years after the death of such person."

It is conceded that at common law no remedy by action existed for loss of life. The right of action set up by the plaintiff is a pure creature of statute, and upon the fair construction of that statute this case stands or falls. The plaintiff's contention is that section 9 creates a new right, and therefore should be construed strictly, as this court has heretofore interpreted It, limiting its scope to cases of immediate death, including cases of both instantaneous death and of total unconsciousness following immediately upon the accident and continuing until death. Perkins v. Paper Co., 104 Me. 109, 71 Atl. 476. But the plaintiff further contends that section 10, determining in whose name and for whose benefit the action should be brought should be construed liberally, and applying such liberal construction it may be said to have been the intention of the Legislature in this section first to vest a right of action in the administrator of the deceased absolutely, and secondly and of less importance to provide for the distribution of the damages so recovered. In other words, the plaintiff's position is that the administrator is given a right of action in any event, and the beneficiaries should be determined, not as of the date of the death, but of the recovery. Such a construction cannot be adopted, as it strains the language of the statute beyond its tensile strength. Sections 9 and 10 are not independent acts of the Legislature, but allied sections of one and the same act, passed originally as chapter 124 of the Public Laws of 1891. One is not to be construed strictly and the other liberally, but both are to be construed together and as they create a liability unknown to the common law, their effect is to be limited to cases clearly within the terms of the act. No right of action is to be inferred and no remedy is to be given except as specified in the statute. "It is a general principle of construction that, where a right is given by statute and a remedy provided in the same act, the right can be pursued in no other mode." Flatley v. R. R. Co., 9 Heisk. (Tenn.) 230; Loague v. R. R. Co., 91 Tenn. 458, 19 S. W. 430.

The language of the statute under consideration is plain and unambiguous. Some beneficiary named therein must exist at the time of the death of the deceased, otherwise no right of action arises. The suit is not for the benefit of the estate, and creditors have no interest in it. True, such suit is brought in the name of the administrator, but he is merely the nominal party and acts as trustee. The Legislature could have given the right directly to the widow or children or heirs, had it seen fit to do so, as the Legislature of some states have done. But if none of the beneficiaries exist at the time of death, no right of action is created. Ea. Tenn. R. R. Co. v. Lilly, 90 Tenn. 563, 18 S. W. 243; Cooper v. Shore Electric Co., 63 N. J. Law, 558, 44 Atl. 633; Topping v....