Lubrano v. Atl. Mills

• Decision Date: 25 June 1895
• Citation: 32 A. 205,19 R.I. 129
• Parties: LUBRANO v. ATLANTIC MILLS.
• Court: Rhode Island Supreme Court

32 A. 205

19 R.I. 129

LUBRANO

v. ATLANTIC MILLS.

Supreme Court of Rhode Island.

June 25, 1895.

Action by Michael Lubrano, administrator, against the Atlantic Mills, to recover for injuries to plaintiff's intestate. Defendant demurred to plaintiff's replication. Sustained.

Willard B. Tanner, for plaintiff.

Raymond G. Mowry, for defendant.

STINESS, J. This action is brought to recover for the pain and expense arising from injuries to the plaintiff's intestate before his death, which resulted therefrom. The defendant pleads a judgment in its favor in a suit by the plaintiff in the same cause of action. The plaintiff replies that the former action was brought by him as trustee for the next of kin of the deceased, and in a different right from that involved in this action, which is for the benefit of the estate. To this replication the defendant demure. The question therefore is whether, under our statutes, an administrator has the right to maintain two actions for negligence resulting in death,—one for the benefit of the widow and next of kin, according to our form of Lord Campbell's Act, and another for the damage to the person, under our statute for the survival of actions.

Upon this question two theories have been advanced. One is that the action for personal injury upon which the deceased could have sued at common law, If death had not ensued, is given, by a statute for survival, for the benefit of his estate, and that a new and independent remedy is given by Lord Campbell's Act for the loss sustained by the widow and children on account of the death. The other theory is that there is but one cause of action, and one remedy, which is given, by grace, to the family of the deceased, in lieu of the aid which they might have expected from him, instead of a recovery for the benefit of his estate; and that this remedy is exclusive. It is to be borne in mind that prior to 1846 no recovery at all could be had for an injury resulting in death. The action died with the person. Neither creditors nor kin had any enforceable rights, however great might have been the loss which the death had brought upon them. Then came Lord Campbell's Act, entitled, "An act for compensating the families of persons killed by accidents." It was not an act for the benefit of an estate, but for the family. It took no right from the estate, for it had none. It transferred no right to the family, for none then existed. It gave a new remedy to the family for the death, and for that only. From that time to this the damages to be recovered by them have been only those resulting from the death. The states of this country quickly adopted the general features of this act, beginning with New York, in 1847. With characteristic conservatism the act was not adopted in this state until October, 1853. In section 1, it. gave the remedy to an administrator, for the benefit of the widow and heirs, for the loss of life of a passenger or person in care of a common carrier; but in section 61, for general cases of death by wrongful act, it was provided that the action could be sustained "by the person who would otherwise have been entitled thereto"; for example, parents and masters, for loss of service. In January, 1855, railroad companies were made liable for the loss of life, by their negligence, of persons crossing a highway, and the same remedy for the benefit of the family was provided, except that in this act husbands were put among the beneficiaries. Up to this point, it is clear that no remedy was provided for the personal injury of the deceased, or for the benefit of his estate. In the Revised Statutes of 1857, c. 176, §§ 16-21, the laws relating to passengers and persons crossing a highway were consolidated, and that relating to general cases of death by wrongful act was expanded to cover all cases in which an action for damages might have been maintained at the common law had death not ensued; with the remedy, however, for the benefit of the family. But in the same chapter (section 10) there was added to the causes of action, and actions which survive, that of "trespass on the case for damages to the person." It is under this section that the plaintiff claims. In support of his claim he relies on Bradshaw v. Railway Co., L. R. 10 C. P. 189; Leggott v. Railway Co., 1 Q. B. Div. 599; Barnett v. Lucas, 6 Ir. R. Com. Law, 247; Bowes v. City of Boston, 155 Mass. 344, 29 N. E. 633; and Needham v. Railroad Co., 38 Vt. 300. The opinion In Bowes v. City of Boston is based upon the statutes of Massachusetts, and holds that two actions, one for the benefit of the family and one for the benefit of the estate, may proceed at the same time, on independent grounds, and for different purposes. It cites no authority. In Needham v. Railroad Co., the point decided was that the injury to the deceased having occurred in New Hampshire, where no right of action in either form survived, the plaintiff could not maintain action therefor In Vermont. The dictum relating to two causes of action has recently been overruled in Legg v. Britton, 64 Vt. 652, 24 Atl. 1016. Barnett v. Lucas was an action for injury to personal estate, and is therefore not in point. Brad shaw v. Railway Co. was on demurrer to the declaration, which alleged a breach of contract to carry a passenger safely, and it was held that the action could be maintained, notwithstanding the fact that provision for compensation for the death was made by Lord Campbell's Act. The case was decided in 1875; and Leggott v. Railway Co., decided in 1876, was a case upon a similar contract, to which the defendant pleaded a denial of the averments of fact, and a recovery...