Legg v. Britton
| Decision Date | 13 May 1892 |
| Citation | 24 A. 1016,64 Vt. 652 |
| Parties | JAMES LEGG, JR., ADMR. v. HENRY S. BRITTON |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1890
Action for the benefit of the widow and next of kin for the wrongful act of the defendant resulting in the death of the plaintiff's intestate. Heard at the December term, 1890 Windsor county, upon demurrer to the plaintiff's replication to the defendant's plea in bar. The demurrer was pro forma overruled, and the defendant excepted.
The pro forma judgment reversed, demurrer sustained replication adjudged insufficient, plea in bar adjudged sufficient and cause remanded.
W E. Johnson and Gilbert A. Davis, for defendant.
The intestate was injured by the unlawful act or neglect of the defendant. He brought a suit to 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. 2138, 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 plead 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. Grand Trunk Railway Co., 38 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. 536, and by Taft, J., in Westcott v. C. V. R. R. Co., 61 Vt. 438. 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. Grand Trunk Railway Company. 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 from 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 Haliday et al., Admrs., 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. Grand Trunk 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 Haliday 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 the Statute 9 and 10 Vict. c. 93 secs. 1 and 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 Acts of 1849, the right of action for personal injuries resulting in death did not survive.
Needham v. Grand Trunk Railway Co., supra. This was the common law doctrine announced by Lord Ellenborough in Baker v. Bolton et al., 1 Cambp. 493, and generally followed. Note to Carey v. Berkshire Railroad Co., 55 Mass. 475, 48 Am. Dec. 616, 632. The act of 1847 is substantially R. L. 2134 and 2135. This act caused to survive action 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 of 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 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 and 2139. The determination of the contention in the case depends upon the construction given to K. L. 2138, which reads: "When the death of a person is cause by the wrongful act, neglect of default of a person, either natural or artifical, 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 his 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 an necessitites. 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 have existed in the intestate if death had not ensued. If therefore, by settlement or recovery in or as of his lifetime no right of action existed or remained in the intestate, none survived to his exector or administrator. So also, if, by settlement or recovery by the intestate in or as of his lifetime no liability rested upon the wrongdoer at his decease, none survived his death against the wrongdoer.
Although such recovery should be by an executor or administrator in a suit commenced by the intestate, or commenced by such executor or administrator, of the recovery be in the right of the intestate while living, such recovery, in legal effect would antedate the death of the intestate, exhaust his...
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