Poff v. New England Tel. & Tel. Co.

• Decision Date: 05 May 1903
• Citation: 55 A. 891,72 N.H. 164
• Parties: POFF v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: New Hampshire Supreme Court

55 A. 891

72 N.H. 164

POFF

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of New Hampshire. Hillsborough.

May 5, 1903.

Exceptions from Superior Court.

Action by Lizzie J. Poff, as administratrix, etc., against the New England Telephone & Telegraph Company, for personal injuries to her intestate, resulting in death. A motion for nonsuit was denied, subject to exception, and the case was transferred to the Supreme Court. Exception sustained.

Wason & Moran, Bertis A. Pease, and Burns & Burns, for plaintiff.

Joseph W. Fellows, Brown, Jones & Warren, and John Lowell, for defendant.

WALKER, J. In the absence of statutory authority, the action cannot be maintained. At common law an action for a personal tort resulting in death does not survive. This "rule has been too long established and too generally recognized as a settled principle of the common law to be now shaken by anything short of a legislative act." Wyatt v. Williams, 43 N. H. 102, 108; Sawyer v. Railroad, 58 N. H. 517; Clark v. Manchester, 62 N. H. 577, 582, 583; Corliss v. Railroad, 63 N. H. 404. At the time of the last revision of the statutes, in 1891, the existing statutes relating to the survival of actions of tort for personal injuries were contained in Laws 1885, p. 223, c. 11, and Laws 1887. p. 454, c. 71 (French v. Mascoma Co., 66 N. H. 90, 20 Atl. 363); and, if they were sufficient to authorize an action like the present, they are not now applicable, because sections 8-13, c. 191, Pub. St. 1891, were adopted in their stead, and were regarded by the commissioners as making material changes in the law as it then existed. See Commissioners' Report. Section 8 is as follows: "Actions of tort for physical injuries to the person—although inflicted by a person while committing a felony—and the causes of such actions shall survive to the extent, and subject to the limitations, set forth in the five following sections, and not otherwise." Section 9 relates to the survival of such an action pending at the decease of the party. Section 10 provides that, "If an action is not then pending and has not already become barred by the statute of limitations, one may be brought for such cause at any time within two years after the death of the deceased party, and not afterwards." If the cause of action in this case had occurred within two years before the date of the writ, no reason has been suggested why the suit would not have been maintainable under the statute quoted. But, as the accident complained of as the cause of the death of the plaintiff's intestate occurred nearly six years before this action was begun, the plaintiff's ground of complaint has long since ceased to exist.

The limitation of time in the statute relates not merely to the remedy, but to the right which the statute creates. The right granted an administrator to sue in such a case is not an absolute right. It is not like the common-law right of making contracts.

In the absence of the statute, it does not exist. Hence its scope and effect must be determined as questions of legislative intention. The plaintiff's right to maintain this suit is not greater than the Legislature intended it should be. The language of the special provisions applicable leave no room to doubt that the right and the correlative liability thereby established were made conditional upon the bringing of the suit "at any time within two years after the death of the deceased party, and not afterwards." The cause of action is conditional. If the condition is not observed, the parties stand with respect to the wrongful act as though the statute had not been enacted. "It must be evident that, as this action is brought under a special law, and is maintainable solely by its authority, the limitation of time is so incorporated with the remedy given as to...