McCabe v. Narragansett Elec. Lighting Co.

• Decision Date: 23 June 1905
• Citation: 61 A. 667,27 R.I. 272
• Parties: McCABE v. NARRAGANSETT ELECTRIC LIGHTING CO.
• Court: Rhode Island Supreme Court

61 A. 667

27 R.I. 272

McCABE

v. NARRAGANSETT ELECTRIC LIGHTING CO.

Supreme Court of Rhode Island.

June 23, 1905.

On motion for reargument. Denied.

For former opinion, see 59 Atl. 112.

Argued before DUBOIS and BLODGETT, JJ.

BLODGETT, J. After the filing of the opinion in this case, reported in 26 R. I. 427, 59 Atl. 112, granting a new trial on the question of damages only, the plaintiff has moved for a reargument on various grounds, but principally contesting the propriety of the rule therein set forth for the computation of damages at such new trial, claiming, inter alia, that the loss of the parental care of the deceased father is proper to be computed as an element of damage to the surviving child, who, at the time of the accident, was an infant of the age of 13 months. A similar question was presented in the case of St. Lawrence & Ottawa Railway Co. v. Lett, 11 Canada, 422, in which the provisions of Lord Campbell's Act, as it appears in Cons. Stats. Canada, c. 78, §§ 2, 3, and upon which the statute of this state which authorizes the action in the case at bar also is founded (Gen. Laws 1896, c. 233, § 14), were discussed at length in the majority and minority opinions of the Supreme Court of Canada and the English and American decisions considered and compared. Three justices favored the allowance of such damages in an opinion which commands respect for the strength of its reasoning, even though the differences in our statute, added to the strength of the reasons advanced by the two justices who dissented, compel us to refuse to follow the rule as established by the majority opinion.

Our statute provides: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default, of another, 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, then, and in. every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. Every such action shall be brought by and in the name of the executor or administrator of such deceased person, whether appointed or qualified within or without the state, and the amount recovered in every such action shall one-half thereof go to the husband or widow, and one-half thereof to the children, of the deceased, and if there be no children the whole shall go to the husband or widow, and, if there be no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate: provided, that every such action shall be commenced within two years after the death of such person. If there is no executor or administrator, or if, there being one, no action is brought in his name within six months after the death, one action may be brought in the names of all the beneficiaries, either by all, or by part, stating that they sue for the benefit of all, and stating their respective relations to the deceased: provided, that if all do not bring such suit, only those bringing it shall be responsible for costs; but judgment shall be for the benefit of all, and shall be entered as several judgments for each in his proportion as aforesaid, and executions thereon shall issue in favor of each respectively: provided, further, that if such action be brought by the beneficiaries, no action shall thereafter be brought by the executor or administrator. There shall be but one bill of costs in favor of the plaintiffs, which shall enure equally for the benefit of those bringing the suit, and of them only." Section 3 of the Canada statute, however, is widely different in this respect, and contains the provision for apportionment of damages contained in Lord Campbell's act (9 & 10 Vict c. 93, § 2), viz.: "In every such action the judge or jury may give such damages as they think proportioned to the injury, resulting from such death, to the parties respectively, for whom and for whose benefit, such action has been brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the judge or jury by their verdict find and direct." After reciting the evidence as to the mother's death, it appears (page 440) as follows: "Upon this evidence the jury rendered a verdict for the plaintiff with $0,800 damages, distributed as follows: To the plaintiff [husband] himself, $1,500; to the child aged 21, a daughter, $600; to the child aged 19, a son, $400; to the one aged 16, a son, $800; to the child aged 14, a daughter, $1,200; and to the child aged 11, a son, $1,300." There were also a daughter of 30 and a son of 22, to whom the jury made no allowance.

These facts are sufficient to show that the statute then under consideration both permits and requires a computation of the amount of damages sustained by each beneficiary. Our own statute, on the contrary, contains no such provision, but distributes the total amount of damages recovered according to a fixed rule, one-half to the husband or widow and the remainder "in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate," and without regard to the greater or less damage suffered by any beneficiary. If the rule contended for were to be adopted here, it would follow that one-half of the damages found to be established or sustained by the child as a special and peculiar loss because of the deprivation of parental care must be paid to the surviving parent if there be one, or, if there be none, and the jury should find, as they did find in the case cited, that two children sustained no damage, and that no two of the five remaining children sustained the same damage, nevertheless the damages must be distributed to all in equal proportions; thus giving gratuitously to some of them that to which they were not entitled by unjustly depriving the remainder of their lawful due. Again, in the case cited the jury allowed the plaintiff husband but $1,500 of a total amount of $5,800. Under our law he would have been entitled to $2,000, or $1,400 more than the proved amount of his loss upon the evidence, and this excess of $1,400 thus unjustly given to him must be taken with perhaps greater injustice from the amounts to which the children had established by the evidence that they were entitled. In like manner, if the rule in question were to be adopted in this state, it would result that the special and peculiar damages proved to have been sustained by any one of these five children for loss of parental care would be diminished first by one-half payable to the parent, and then,...