Picard v. Libby

Decision Date06 December 1956
PartiesElzear J. PICARD, Adm'r, Estate of Philip Picard, v. Albert LIBBY.
CourtMaine Supreme Court

Niehoff & Niehoff, Waterville, for plaintiff.

Bartolo M. Siciliano, Dexter, for defendant.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN and DUBORD, JJ.

WILLIAMSON, Chief Justice.

This is an action under the Death Statute, so-called, arising from the death of a child four years of age. R.S. c. 165, Secs. 9, 10. The case is before us on exceptions, first, to the allowance of the filing of an amendment, and second, to the overruling of a special demurrer.

First Exception

At the February Term 1956 of the Kennebec Superior Court the plaintiff, administrator of the child's estate, filed a motion to amend his writ by adding two counts. The presiding Justice at the same term entered the following order: 'Motion granted. Amendment allowed.' On the second day of the April Term and plaintiff filed a paper entitled 'Amended Declaration', which includes the first count under the original declaration and the two counts to the February amendment.

The defendant asserts that the Court was without authority to allow the amendment to be filed at the April Term under Rule 8 of the Rules of Court, 147 Me. 466. The Rule covers the situation when an action shall be continued 'with leave to amend', with limitations upon time of filing and penalties for failure to comply. If the Rule applied, the filing was late; but in our view the Rule does not touch the case.

There was no continuance of the case at the February Term with leave to amend. The amendment was then and there allowed by the president Justice. The decision 'amendment allowed' speaks for itself. In Tibbetts v. Dr. D. P. Ordway Plaster Co., 117 Me. 423, 425, 104 A. 809, 810, we said:

'The next question that arises is when the amendment itself should be filed, because there is a distinction between granting leave to amend and the allowing of the amendment itself. The former is an order permitting an act to be done; the latter is the doing of the act itself.'

Nothing was changed or altered by the filing of the 'Amended Declaration'. The plaintiff's pleadings long since had been settled by the allowance of the amendment at the February Term. The first exception is overruled.

Second Exception

The defendant places the exception to the overruling of his special demurrer on 27 grounds, most of which are applicable to each of the three counts.

The plaintiff must bring his pleadings within the principle set forth in Nadeau v. Fogg, 145 Me. 10, 70 A.2d 730. The Court said, 145 Me. at page 13, 70 A.2d at page 732:

'Under the law of this state it is the duty of the plaintiff in an action of negligence to inform the defendant of the facts upon which he relies to establish liability for the injuries alleged and a plaintiff must set out a situation sufficient in law to establish a duty of the defendant towards the plaintiff and that the act complained of was a violation of that duty.'

See also Glidden v. Bath Iron Works Corp., 143 Me. 24, 54 A.2d 528, 175 A.L.R. 976, and cases cited.

The procedure open to the defendant is found in Couture v. Gauthier, 123 Me. 132, 122 A. 54. The Court said, 123 Me. at page 133, 122 A. at page 54:

'In actions for the negligent driving of teams upon the highway it have never been deemed necessary to specify in what particular the defendant was negligent. * * * There may be more reason in actions for alleged negligence in the operation of automobiles than in the case of horse-drawn vehicles why the plaintiff should set forth in what respect the defendant was negligent--whether for operating his automobile on the wrong side of the road, or for failing to give warning of his approach, or for operating it at an excessive speed--in order that the defendant may be appraised of what he has to meet, and we think it the better form of pleading so to do; but we deem a lack of certainty in this respect a matter of form, and not of substance, and hold that, at least, in this class of cases, a general allegation of negligence must be held good upon general demurrer. Lack of certainty and definiteness in this respect must be taken advantage of by special demurrer or by motion to make more definite and certain.'

See Cratty v. Samuel Aceto & Co., 148 Me. 453, 95 A.2d 689; Reynolds v. W. H. Hinman Co., 145 Me. 343, 75 A.2d 802, 20 A.L.R.2d 1360.

'A special demurrer is one which denies the legal sufficiency of the previous pleading in certain matters of form specially assigned and pointed out by the demurrer.' Martin, Common Law Pl., 6 Me.Law Review, p. 175.

The first count of the declaration reads:

'In a plea of the case for that the said plaintiff is the duly qualified Administrator of the Estate of Philip Picard, * * *; that the said defendant at Unity Plantation, * * * on the 24th day of July A.D.1955 was the operator of a certain automobile, to-wit, a 1950 Mercury Sedan, then and there operating the same in a northeasterly direction upon a public highway, being Route 139, so-called, and leading from Benton Station, Maine to Unity, Maine; that the plaintiff's intestate, being then and there a child of tender years, to-wit, of the age of four years, was standing or walking on the side of said public highway, at a point nearly in front of the residence of Elzear Picard in said Unity Plantation, and off the traveled portion of said highway; and the plaintiff avers that his said intestate was then and there in the exercise of due care; that it was then and there the duty of said defendant to operate his said automobile with due care and caution so as not to endanger the life and safety to others upon said highway, including the plaintiff's intestate; (1) (the plaintiff further avers that the said defendant, unmindful of his duty aforesaid, operated and propelled his said automobile in a careless and negligent manner) so as to drive it off said highway and strike and run into the plaintiff's said intestate inflicting injuries upon him from which he died on the said 24th day of July 1955, without conscious suffering; and the plaintiff further avers that the injuries sustained by his intestate, and his ensuing death, without conscious suffering, were caused solely by the negligence of the defendant and in no way contributed to by either the plaintiff or the plaintiff's intestate who were at all times in the exercise of due care; and the plaintiff avers that his said intestate (2) left surviving him his father and mother who were and are his sole heirs at law and for whose exclusive benefit this action is brought; and the plaintiff further avers that the funeral expenses amounted to two hundred thirty-two dollars and ninety cents ($232.90); and the plaintiff avers that this action brought by him is instituted within two years from the date of the death of his said intestate in accordance with the provisions of the Statutes of Maine, and by force of which an action hath accrued to the plaintiff to have and recover the damages sustained against the said defendant as herein above set forth.'

In the second count the following replaces the clause in the first count in parentheses at (1):

'* * * and more specifically the plaintiff avers that it was then and there the duty of the defendant to operate his automobile at a reasonable and proper rate of speed, and with due regard to...

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3 cases
  • Milton v. Cary Medical Center
    • United States
    • Maine Supreme Court
    • February 22, 1988
    ...the "pecuniary injuries" to the beneficiaries. Thus, damages for the death of a minor child were severely limited. See Picard v. Libby, 152 Me. 257, 127 A.2d 490 (1956); Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 (1939); Carrier v. Bornstein, 136 Me. 1, 1 A.2d 219 (1938);......
  • Dolan v. Dolan
    • United States
    • Maine Supreme Court
    • November 25, 1969
    ...the amendment itself. We refer to Tibbetts v. Dr. D. P. Ordway Plaster Company, 1918, 117 Me. 423, 425, 104 A. 809, and Picard v. Libby, 1956, 152 Me. 257, 127 A.2d 490, as authorities to pinpoint the difference between 'motion to amend allowed' and 'amendment allowed'. The presiding justic......
  • Buzynski v. Knox County
    • United States
    • Maine Supreme Court
    • February 14, 1963
    ...brings the action as trustee for the widow and children, and with reference to the expenses for the benefit of the estate. Picard v. Libby, 152 Me. 257, 127 A.2d 490; O'Connell v. Hill, 157 Me. 57, 170 A.2d 402. The action is created on the death of the decedent. Hammond v. Lewiston, A. & W......

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