Legg v. Britton

• Citation: 64 Vt. 652,24 A. 1016
• Parties: LEGG v. BRITTON.
• Decision Date: 13 May 1892
• Court: United States State Supreme Court of Vermont

24 A. 1016

64 Vt. 652

LEGG

v. BRITTON.

Supreme Court of Vermont, General Term.

May 13, 1892.

Exceptions from Windsor county court.

Action by James Legg, Jr., as administrator, against Henry S. Britton, to recover damages for the benefit of the widow and next of kin for the wrongful act of defendant, resulting in the death of plaintiff's intestate. A demurrer to plaintiff's replication to the plea was overruled pro forma, and defendant excepts. Exceptions sustained.

The defendant pleaded in bar that the intestate in his lifetime began suit against the defendant for the same neglect which was now alleged by the plaintiff to have occasioned his death, and deceased while said suit was pending; that thereupon his administrator entered and prosecuted the same to a judgment, which the defendant paid. The plaintiff replied that the damages recovered and paid in that suit were for the injuries done the intestate in his lifetime, and did not include the damages occasioned his widow and next of kin by his death.

Hunton & Stickney, for plaintiff.

W. E. Johnson and Gilbert A. Davis, for defendant.

ROSS, C. J. The intestate was injured by the unlawful act or neglect of the defendant. He brought a suit co recover therefor, and, pending the suit, died, it is claimed, from the injury so received. His administrator entered and prosecuted that suit to final judgment, which has been satisfied. The administrator subsequently brought this action, under R. L. § 2139, to recover for the widow and next of kin the pecuniary injury resulting to them from the death of the intestate. To this action the defendant has pleaded in bar the judgment in the suit commenced by the intestate in his lifetime, and its satisfaction. The contention is whether the plea is a good answer to this suit. Each party claims that this contention is settled in his favor by former decisions of this court. The plaintiff relies upon Needham v. Railway Co., 88 Vt. 294. In that case the question is discussed at length, and the views of the court given thereon in favor of the plaintiff's contention. That decision, made in 1865, remained unquestioned until 1881. It is referred to, not by name, but in principle, with approval by Judge Peck, in Harding v. Townshend, 43 Vt. 541, and by Taft, J., in Westcott v. Railroad Co., 61 Vt. 440, 17 Atl. Rep. 745. But in neither case was the question in controversy under consideration, nor was there any attempt to discuss or decide it. Nor was this question involved in the point decided in Needham v. Railway Co. The point decided in that case is that the injury to the deceased having occurred in New Hampshire, under whose then existing laws no right of action in either form survived, the plaintiff could not maintain an action therefor in this state. This court held, as is everywhere held, that the laws of the place of the accident occasioning the injury governed the rights of the parties in reference thereto. To this decision it was not necessary to consider whether, under the laws of this state, one or more rights of action survived to the administratrix. We fully recognize, however, the ability of the court rendering that decision, and the ability with which the question whether the statutes of Vermont for such an injury gave one or two rights of action, is discussed. The defendant relies upon the unreported case of Halliday's Adm'rs v. Dover, (heard and decided at the general term of this court in 1881.) The precise question raised in this case was raised in that case, discussed, and considered. Judge Veazey, to whom the case fell, drew up an opinion upon this question which met the approval of a majority of the court, in effect overruling some of the conclusions maintained in Needham v. Railway Co. But, as one or more of the judges did not concur in the views he had expressed, the case was not published, and, as Judge Veazey now recollects, was finally disposed of on the insufficiency of the notice to the town. Hence, so far as concerns the views previously expressed by this court on this question, we have the published views in the Needham Case, in which the question did not properly arise, and need not have been considered, and the unpublished views of a majority of this court in the Halliday Case, in which the identical question did arise and was considered, but which eventually was made to turn on another question in the case. In the condition of the decided cases in this state, the question is fairly open for consideration and decision. It has been very fully and ably discussed by counsel on both sides. We have examined and carefully considered the views of the respective attorneys, the many cases cited, and the views of law writers on the various questions which have arisen upon the provisions of St. 9 & 10 Vict. c. 93, §§ 1, 2, known as "Lord Campbell's Act," and statutes of the several states of like legal import. We shall not attempt to review them, nor to point out wherein the statutes or decisions differ, but rather confine ourselves more especially to a consideration of the statutes of Vermont. Before the passage of No. 42 of the Acts of 1847, and No. 8 of the Acts of 1849, the right of action for personal injuries resulting in death did not survive. Needham v. Railroad Co., supra. This was the common-law doctrine announced by Lord Ellenborough in Baker v. Bolton, 1 Camp. 493, and generally followed. Note to Carey v. Railroad Corp., 48 Amer. Dec. 616, (532. The act of 1847 is substantially R. L. §§ 2134, 2135. This act caused to survive actions for the recovery of damages for a bodily hurt or injury occasioned by the act or default of the defendant, although one of the parties should die pending the action. It also provides that such an action might be prosecuted by or against an executor or administrator, where by law that mode of prosecution is authorized, or before commissioners, when appointed. Such damages could be recovered as the person injured could have recovered if he had survived, including expense for doctoring and nursing, loss of service, and compensation for pain and suffering. The damages so recovered became a part of the estate of the deceased, and were disposed of under the law as such. The act of 1849 in legal effect is embodied in R. L. §§ 2138, 2139. The determination of the contention in this case depends upon the construction given to R. L. § 2138, which reads: "When the death of a person is called by the wrongful act, neglect, or default of a person, either natural or artificial, 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, the person or corporation liable to such action, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, and although the death is caused under such circumstances as amount in law to a felony." The contention is whether this section gives a right of action to the representative of the deceased person for the benefit of the widow and next of kin, as provided in the following section, when the deceased, in person, or through his representative, has recovered or settled for the injury which occasioned his death. In giving construction to this section of the statute, it is the duty of the court to ascertain and carry into effect the intention of the legislature. That intention is to be ascertained—First, from the language of the act taken as a whole; and,secondly,from its application to existing circumstances and necessities. It is to be presumed that it used language appropriate to express its intention, when applied to existing circumstances and needs. It is to be borne in mind that this and the act of 1847 are acts passed with reference to the survivorship of actions. The language used clearly gives the same right of recovery which would...