Matthews v. Warner's Adm'r

• Court: Virginia Supreme Court
• Writing for the Court: CHRISTIAN, J.
• Citation: Matthews v. Warner's Adm'r, 70 Va. 570 (1877)
• Decision Date: 19 December 1877
• Parties: MATTHEWS v. WARNER'S adm'r.

70 Va. 570

MATTHEWS v. WARNER'S adm'r.

Supreme Court of Appeals of Virginia.

December 19, 1877

Absent, Moncure, P.

1. In an action under chapter 145, § 7-9, Code of 1873, to recover damages for the death of a person caused by the wrongful act & c., of another, it is not necessary to aver in the declaration for whose benefit the action is brought.

2. In such an action the jury, in assessing the damages, are not confined to the mere pecuniary loss and injury, but may give such damages as to them " may seem fair and just."

3. Where, in such an action, the death was caused by the wrongful act of the defendant, it is no defence that the death was the result of the misconduct or neglect of the deceased; but that circumstance may affect the quantum of damages.

4. In order to entitle a party to a continuance on the ground of the absence of a material witness, it is necessary that he should have used due diligence to ascertain the materiality and to procure the attendance of the witness.

This was an action of trespass on the case in the circuit court of Accomac county, brought by John J. Tunnell, administrator of Montesco Warner, deceased, against Franklin M. Matthews, to recover damages for the killing of Warner by Matthews. On the trial, the evidence showed that after receiving very abusive language from Warner, and that repeated, Matthews shot him and that he died from the effects of the shot in about ten days. They were both young and unmarried men, and Warner much the most powerful of the two. His mother was the wife of the plaintiff, and it did not appear that he had either sisters or brothers. Matthews' estate was estimated at certainly not more than $1,000.

The jury rendered a verdict for the plaintiff for $700, and directed that the same should be paid to Sinah Tunnell, the wife of the plaintiff and the mother of Warner.

The several questions raised in the progress of the cause, are stated in the opinion of Judge Christian. Matthews applied to this court for a writ of error and supersedeas; which was awarded.

Meredith, for the appellant.

Neely, and Walker & Hundley, for the appellee.

CHRISTIAN J.

This is a writ of error to a judgment of the circuit court of Accomac county.

The suit was brought by the personal representative of Warner to recover damages of Matthews, under the 7th and 8th sections of chapter 145, Code of 1873, which provide that a claim for damages may be maintained by the personal representative of one whose death has been occasioned " by the wrongful act, neglect, or default of any person or corporation." The certificate of facts show that Warner was shot and killed by Matthews under circumstances which, if not such as the law declares to be murder in the second decree, or, at the very least, voluntary manslaughter, certainly must be held to be a wrongful act. Suit was brought by the administrator of the deceased under the statute above referred to, and a verdict was recovered against the plaintiff in error for the sum of seven hundred dollars, for which judgment was rendered by the circuit court, and to this judgment a writ of error was awarded by one of the judges of this court.

The first error assigned is the action of the court overruling the demurrer to the declaration.

The demurrer was intended to assert the proposition, that in an action under the statute, by the personal representative of the person killed, it is necessary to aver in the declaration for whose benefit the suit is prosecuted, whether the family of the deceased, parent, wife or child, or for his creditors, and that under the statute this is essential to enable the jury to distribute the damages in such proportions as they may direct.

This question has been already settled by this court. In the case of Baltimore and Ohio Railroad Company v. Wightman, decided at the present term, Judge Staples, in an elaborate opinion, in which he carefully compares the Virginia statute with those of other states, and reviews the decisions under these statutes, founded upon their peculiar requirements and phraseology, reaches the following conclusion, which was concurred in by the whole court: " The statute was designed to give the personal representative a right of action wherever the deceased would have had it, had he lived. The declaration must, therefore, always state such facts as will show a good cause of action on the part of the deceased himself (if he were living). And this would seem to be the only test prescribed by the statute. The defendant knows that the damages are primarily for the benefit of the family, for so the law declares, and he can be very rarely surprised by the evidence on this point. The manner in which the damages are to be distributed is no concern of the defendant and not under control of the plaintiff. It is a question for the jury exclusively, not involved in the issue. It is very probable that no serious inconvenience would result from requiring the plaintiff to state for whose benefit the action is brought, but such an averment is not essential to the action. If we require it to be made merely because it has a material bearing upon the question of damages, it will be difficult to assign a limit to allegations of that character. In simplifying all the proceedings and pleadinsg we best promote the objects of the statute." Upon the question, therefore, raised by the demurrer in this case without repeating the argument and the authorities relied upon by Judge Staples, I shall content myself with saying that upon the principles and authorities cited in Baltimore and Ohio Railroad Company v. Wightman, and which are equally applicable to this case, there was no error in the judgment of the circuit court of Accomac in overruling the demurrer to the declaration.

The second error assigned is the refusal of the court to give the instructions asked for by the defendant (plaintiff in error here), as set forth in the third bill of exceptions, which instruction is as follows: " If the jury, from the evidence, should find for the plaintiff, then the measure of damages in this action is the pecuniary loss sustained by Sinah Tunnell, the mother of the plaintiff's intestate, by reason of the death of the said Montesco Warner, and the jury, in assessing the damages, must confine themselves to injuries of which a pecuniary estimate can be made in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, to his said mother, from the continuance of the life of the said Montesco Warner, and cannot take into consideration the mental suffering occasioned by his death to his said mother."

This instruction was refused by the circuit court, and presents for our consideration the important question, What is the true construction to be given to the statute respecting the measure of damages which it prescribes? Whether the jury is confined in its estimate of the damages incurred by the death of the party to the pecuniary loss thereby sustained by the party for whose benefit the suit is brought, or whether they are justified in giving punitive and exemplary damages. This statute, in this respect, has never been construed by this court; indeed, it has been upon the statute book but a few years, and few cases have arisen under it in this state. We must, therefore, look to the English statute and the statutes of other states of the Union, and the decisions under those statutes in order to arrive at the true interpretation to be given to our own.

The seventh section of our statute is totidem verbis with the corresponding section of the English statute: " § 7. Whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured, or if she be a married woman, her husband, either separately or together with her, to maintain an action and recover damages in respect thereof, then,...