Lazelle v. Town of Newfane

• Court: Vermont Supreme Court
• Writing for the Court: TYLER, J.
• Citation: Lazelle v. Town of Newfane, 70 Vt. 440, 41 A. 511 (Vt. 1898)
• Decision Date: 30 April 1898
• Parties: LAZELLE v. TOWN OF NEWFANE.

41 A. 511

70 Vt. 440

LAZELLE

v. TOWN OF NEWFANE.

Supreme Court of Vermont. Windham.

April 30, 1898.

Exceptions from Windham county court; Thompson, Judge.

Case by L. Z. Lazelle against the town of Newfane, under V. S. § 2452, for damages to next of kin resulting from the death of plaintiff's intestate, caused by an insufficiency in defendant's highway. Judgment for defendant, and plaintiff excepted. Affirmed.

The plaintiff excepted to the defendant's being permitted to show the amount of property owned by the intestate and the next of kin, respectively, at the time of the former's death; to the failure of the court to charge that the jury might award damages for the loss of the society of the deceased; to the failure to charge that the jury might consider the special damages of the loss of the services of a mother to a son and his family; and to the failure to charge that, if the defendant is primarily liable, the plaintiff is entitled to at least nominal damages. The jury were instructed to return a verdict for the defendant unless they found that the next of kin had sustained actual damages. They were instructed not to take into consideration any pecuniary benefit which the next of kin had derived from the death of his mother by reason of inheriting her property.

Clarke C. Fitts and L. M. Read, for plaintiff.

Haskins & Schwenk and Waterman, Martin & Hitt, for defendant, cited, on the question of pecuniary loss, Howard v. Canal Co., 40 Fed. 195; Serensen v. Railroad Co., 45 Fed. 407; Keiley v. Railroad, 48 Fed. 663.

TYLER, J. The plaintiff's evidence tended to show that the intestate was a widow and about 79 years old; that she had suffered an injury to one hip many years before, which made her slightly lame; that she and her only son and child, Stillman H., lived in different tenements in the house situated upon a farm which they owned together; that her son was 52 years old, had a wife, and two children, 9 and 15 years old respectively; that her son and his wife were in good health; that the intestate did her own work, and some work for her son's family, such as sewing and mending, and occasionally, in the absence of her son's wife, got the meals for the family, "and did such other work about her son's household and for his family as a woman of her age, condition of health, and situation would naturally do, situated as the family then was."

1. At common law all actions for personal injuries died with the person injured, and the death of a human being by another's wrongful act, though involving pecuniary loss, afforded no ground for an action for damages in behalf of the widow or next of kin. Sherman v. Johnson, 58 Vt 40, 2 Atl. 707; Legg v. Britton, 64 Vt. 652, 24 Atl. 1016. Damages for the death of a person, caused by the wrongful act, neglect, or default of another person or a corporation, are recoverable only by force of the statute. V. S. § 2451. As was said by the court in Legg v. Britton: "Strictly, it is a new right of recovery, arising from an injury to the intestate, which gave or would have given him a right of action and of recovery if death had not ensued." Section 2452, in express terms, limits the recovery to the pecuniary injuries resulting from such death, to the wife and next of kin. The first English statute that gave the right to maintain an action for the recovery of damages for the wrongful killing of a human being was enacted in 1846. and is generally known as "Lord Campbell's Act" 9 & 10 Vict c. 93. Our own statute and the statutes of many of the other American states have provisions similar to those contained in that act. While the statute seems capable of but one construction, it has been several times before the court, and it has been held that pecuniary loss or injury was the limit of recovery. Needham v. Railway Co., 38 Vt. 294; Eames v. Brattleboro, 54 Vt 471; Legg v. Britton, supra. That in estimating the damages, the jury are confined to the pecuniary loss sustained by the widow or next, of kin, and cannot take into consideration their grief and mental suffering, nor give damages by way of solatium, is well stated in Railway Co. v., Goodykoontz, 119 Ind. Ill, 21 N. E. 472, and 12 Am. St. Rep. 371, and is supported by numerous authorities cited in the notes to that case. There the court said: "Pecuniary loss, not to the estate of the deceased person, but to those who had a reasonable expectation of pecuniary benefit, as of right, or of duty, or from a recognized sense of obligation, from the continuance of the life, is the foundation of this action." 5 Am. & Eng. Enc. Law, 45, and notes; Franklin v. Railway Co., 8 Eng. Ruling Cas. 419, and notes. The cases cited on defendant's brief from the Federal Reporter are also in point Railway Co. v. Barron, 5 Wall. 90. But, to enable the jury to properly estimate the pecuniary injury, it is obviously necessary that evidence be given showing the situation and circumstances in life of the deceased, his age, probable duration of life, mental and physical condition, ability and disposition to labor, habits of industry and earning power, and also the amount of his estate as bearing upon the likelihood of his becoming a charge instead of being an assistance if he had lived. In 5 Am. & Eng. Enc. Law, 128, it is said that, in estimating such damages, the jury may consider the decedent's personal character and mental and physical capacity. Human lives are not of equal pecuniary value, and the value of services rendered depends upon the wants of the beneficiary. Therefore it is competent to show the situation of the persons who claim to have been so injured, and the occasion for and value to them of the services of the deceased. The death of the father of young children who required his care and training would be a greater pecuniary loss to them than the death of a father would be who had become almost wholly dependent upon his children for his maintenance. So, the loss of a husband who maintained and cared for his wife would be a greater pecuniary loss to her than if he were indolent, thriftless, and were supported by her. In Eames v. Brattleboro, the presiding judge, in his instructions to the jury, spoke of the next of kin as of tender age, and remarked that, "like all children of that age, they need the care and nurture of a mother, and you as well as any one know how valuable such care is to young children." It has been held that loss of intellectual and moral training and proper nurture by a child, and loss of her husband's care and protection by a widow, are within the meaning of the term "pecuniary loss." Tilley v. Railway Co., 24 N. Y. 471; Id., 29 N. Y. 252, 86 Am. Dec. 197; Mclntyre v. Railway Co., 37 N. Y. 287.

In the case at bar the amount of pecuniary assistance which the son might reasonably have expected to receive from...