Pitman v. Merriman

• Citation: 117 A. 18
• Parties: PITMAN v. MERRIMAN.
• Decision Date: 07 February 1922
• Court: Supreme Court of New Hampshire

117 A. 18

PITMAN

v. MERRIMAN.

Supreme Court of New Hampshire. Carroll.

Feb. 7, 1922.

Exceptions from Superior Court, Carroll County; Allen, Judge.

Action by William Pitman, administrator, against Helen B. Merriman. Verdict for plaintiff, and defendant excepts. Judgment on the verdict.

See, also, 79 N. H. 492, 111 Atl. 751.

The charge to the jury contained the following:

"The third element [of damages] is for loss of earning capacity in connection with which the decedent's age and his probable duration of life are to be considered, as well as anything else disclosed by the evidence which bears on the question. * * * This earning capacity is the capacity to earn money for one's estate, and that means what one is able to be worth to his estate. In other words what one would be able to save from what he would be able to earn over and above what it would cost him to live. His net saving ability from the time of his coming of age during his probable duration of life would measure the extent of this element of damage."

The plaintiff excepted "to the statement that what it would cost to live is to be taken into consideration in determining the damages to the estate."

William N. Rogers, of Concord, for plaintiff.

Arthur O. Fuller, of Exeter, and Loring, Coolidge & Noble and John Noble, all of Boston, Mass., for defendant.

PARSONS, C. J. This action for negligently causing the death of the plaintiff's intestate is brought under sections 8-13, c. 191, P. S. Except for the provincial highway statute the first modification in this state of the common-law rule that the death of a human being could not constitute a cause of action is found in the statute (chapter 953, § 7, Laws 1850) authorizing a proceeding by way of indictment against a railroad, in case of loss of life by a person not in its employment, through the negligence of the railroad or its servants. Piper v. Railroad, 75 N. H. 435. 443, 75 Atl. 1041.

The contention of counsel for the plaintiff that the source of this act is to be found in the Massachusetts act of 1840, c. 80, rather than in the English act passed in 1846 (St. 9 & 10 Vict. c. 93) usually called Lord Campbell's Act, is probably well founded. But, if this be so, the conclusion sought to be based thereon that the theory of the act of 1850 or of the existing legislation is punitive rather than compensatory is not sustained by the judicial construction of that act or the subsequent amendatory action of the Legislature. Whatever the theory of subsequent adjudication and legislation in Massachusetts (Hudson v. Railroad, 185 Mass. 510, 71 N. E. 66; Carey v. Railroad, 1 Cush. [Mass.] 475, 48 Am. Dec. 616) the purpose of. the act was here held to be compensation. The idea of punishment is not referred to in subsequent adjudication or legislation. In State v. Railroad, 52 N. H. 528, it was held that the proceeding, though criminal in form, was to be considered and treated as civil action for the recovery of damages; that it was not intended to punish the defendants, but to make them "liable in damages to the family and heirs of the deceased for the injury done to them in depriving them of one upon whom they leaned for support and guidance." 52 N. H. 548. As stated by Judge Perley in State v. Gilmore, 24 N. H. 461, 471:

"The law in substance provides a method for recovering a sum for the benefit of the surviving relatives of one whose life has been lost by carelessness or negligence, on the ground that the surviving relatives have suffered an injury that ought to receive a pecuniary compensation."

In the same case it was held that, as the fine to be imposed upon a conviction was to be given the relatives of the deceased, if the deceased left no relatives, no fine could be imposed; as under the present statute in such situation no damages can be recovered. Hinman v. Hines, 79 N. H. 518, 112 Atl 382.

The Indictment In State v. Railroad, 52 N. H. 528, was properly tried, it was held, precisely as if it had been a civil suit by the deceased for Injury not resulting in death. The state was required to prove the defendants' fault and the deceased's absence of fault as cause for the injury. The distinction found in Massachusetts between this legislation and Lord Campbell's Act (Carey v. Railroad, 1 Cush. [Mass.] 475, 48 Am. Dec. 616), was not here followed, but the New Hampshire statute appears to have been administered on the lines of the English act, under which the defendant's liability depended upon the existence of a right of action in the deceased (Senior v. Ward, 1 El. & El. 355), and the purpose of the act was considered to be compensation to the relatives of the deceased for loss sustained by the death. Blake v. Midland Rwy. Co., 18 Q. R. 233; Franklin v. South Eastern Ry. Co., 3 H. & N. 211; Dalton v. South Eastern Ry. Co., 4 C. B. N. S. 296.

In the amendments and re-enactments of the act in 1879 (St. 1879, c. 35) and 1887 (St. 1887, c. 71) the form of procedure found in the Massachusetts' act was abandoned, and the English procedure of a suit by the administrator of the deceased adopted. This fact and expressions apparently taken directly from the English act show conclusively the dependence of the present statute upon Lord Campbell's Act All that remained of the Massachusetts act after these amendments was the provision for the distribution of the damages recovered. Act of 1879, c. 35, § 1, which repealed the act of 1850, gave the administrator a right of action for the injury, but the damages were limited to such as the deceased might have recovered. French v. Mascoma Co., 66 N. H. 90, 98, 20 Atl. 363; Corliss v. Railroad, 63 N. H. 404; Clark v. Manchester, 62 N. H. 577. In 1887 the statute acquired substantially its present form.

"When the death of a person is caused by the wrongful act or neglect of another, which, if death had not ensued, would have entitled the person injured to recover damages therefor, then, on the death of such person, his executor or administrator may, * * * recover damages...