Robinson v. Dixon

• Decision Date: 15 April 1940
• Citation: Robinson v. Dixon, 91 N.H. 29, 13 A.2d 163 (N.H. 1940)
• Parties: ROBINSON v. DIXON et al.
• Court: New Hampshire Supreme Court

13 A.2d 163

ROBINSON

v. DIXON et al.

Supreme Court of New Hampshire. Rockingham County.

April 15, 1940.

Transferred from Superior Court, Rockingham County; Lorimer, Judge.

Action on the case by Walter D. Robinson, administrator, against William O. Dixon and Lawrence J. Dulac for death of plaintiff's intestate as result of injuries received in an automobile accident.Verdict for plaintiff for $5,000 which defendants moved to set aside as excessive, which motion was denied.Transferred on defendants' exceptions.

Judgment on the verdict.

Action on the case, to recover damages for the death of the plaintiff's intestate.A trial by jury, after a view, resulted in a verdict for the plaintiff in the sum of five thousand dollars.

The defendants' motion to set this verdict aside as excessive was denied, and they excepted.Other exceptions taken by them and transfer ed have been waived.Transferred by Lorimer, J.

The material facts are stated in the opinion.

Hughes & Burns, of Dover, and Walter A. Calderwood, Jr., of Nashua, for plaintiff.

Sewall, Varney & Hartnett and Henry M. Fuller, all of Portsmouth, for defendants.

WOODBURY, Justice.

The parties are all residents of this state and so was the decedent, but the automobile accident in which the latter was fatally injured occurred in Maine.Without objection or exception this action was tried under the death statute of that state.Maine Revised Statutes, (1930), c. 101, §§ 9, 10, as amended by.Maine Acts and Resolves 1933, c. 133.Under the circumstances" disclosed, the submission to the jury of both the issue of liability and that of damages under the statute of Maine cited above was proper.Hill v. Boston & M. Railroad, 77 N.H. 151, 89 A. 482, Ann. Cas.1914C, 714;Marshall v. Boston & M. Railroad, 81 N.H. 548, 124 A. 550;Stinson v. Maine Cent. R. Co., 81 N.H. 473, 128 A. 562;Am.Law Inst., Restatement of Conflict of Laws, §§ 391, 392, 412, 417.

The question presented is whether the law of Maine should also be applied in determining the issues raised by the defendants' motion to set the verdict aside on the ground that it is excessive.

In this state we do not give foreign law extraterritorial effect."We enforce the foreign law because it is our law that the foreign law shall govern the transactions in question,"(Gray v. Gray, 87 N.H. 82, 87, 174 A. 508, 511, 94 A.L.R. 1404), and the basis of our law is the principle of comity.Crippen v. Laighton, 69 N.H. 540, 552, 553, 44 A. 538, 46L.R. A. 467, 76 Am.St.Rep. 192;Ghilain v. Couture, 84 N.H. 48, 146 A. 395, 65 A.L. R. 533;Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874.As this principle of comity has been applied by this court over the years, certain rules governing its scope have crystallized.In general it maybe stated that while under appropriate circumstances we may apply the substantive law of another state to questions of fact in litigation here, we do not apply the procedural law of any state but our own.The question of what law to apply is not, however, always answered by simply determining the nature as substantive or adjective of the particular rule of law involved.This is for the reason that we do not here enforce foreign substantive law if it is penal in character (Hill v. Boston & M. Railroad, 77 N.H. 151, 89 A. 482, Ann.Cas. 1914C, 714), or if it contravenes our public policy (Saloshin v. Houle, 85 N.H. 126, 155 A. 47), while we do enforce foreign adjective law "when the foreign remedy is so inseparable from the cause of action that it must be enforced to preserve the integrity and character of the cause and when such remedy is practically available."Precourt v. Driscoll, 85 N.H. 280, 283, 157 A. 525, 527, 78 A.L.R. 874.

The question of whether the law to be applied in ruling upon the defendant's motion in the case at bar is substantive or adjective, and the further question, if it belongs in the latter category, of whether or not it is so much a part of the cause of action, which is admittedly governed by the law of Maine, that justice and equity require that the law of that state be resorted to upon this phase of the case also, is one of both novelty and difficulty.However, we do not need to consider it because under either the law of Maine or of this state the ruling of the court below must stand.

Section ten of the Maine statute of 1930 cited earlier in this opinion, which is a re-enactment of earlier similar statutes on the subject, provides that "The jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the persons for whose benefit such action is brought."The amendment to this statute of 1933, also cited above, changes the limit to the amount recoverable from five to ten thousand dollars.

Interpreting this statute, the Maine court has held that under it there may be no recovery of punitive damages (Oakes v. Maine Cent. Railroad Co., 95 Me. 103, 49 A. 418), or for the pain and suffering of the decedent (McCarthy v. Claflin, 99 Me. 290, 59 A. 293), that there can be no recovery of damages "for any grief, distress of mind, loss of mere companionship or society, or injury to the affections, suffered by the beneficiaries,"(Graffam v. Saco Grange Patrons of Husbandry, No. 53, 112 Me. 508, 92 A. 649, 650, L.R.A.1915C, 632), and that there can be no recovery of funeral expenses.Williams v. Hoyt, 117 Me. 61, 102 A. 703.What is held by the Maine court to be recoverable under this statute is "the present worth of the future pecuniary benefits of which the beneficiary has been deprived by the wrongful act, neglect, or default of the defendant."Oakes v. Maine Cent. Railroad Co., supra[95 Me. 103, 49 A. 419].

The rule for assessing damages under the statute was stated by the Maine court in 1899 in the case of McKay v. New England Dredging Company, 92 Me. 454, 43 A. 29, in the following language which was cited and quoted with approval by that court in 1917 in the case of Williams v. Hoyt, 117 Me. 61, 102 A. 703, 704: '"The injury occasioned by such death must be wholly to the beneficiaries named in the statute, and the damages to be recovered for such injury are limited to the pecuniary effect of the death upon them.It is not essential to the right of the beneficiaries to recover damages for such death that they should have any legal claim against or upon the deceased.Wherever there exists a reasonable probability of pecuniary benefit to one from the continuing life of another, however arising, the untimely extinction of that life is a pecuniary injury.'In estimating the amount which shall be the 'fair and just compensation' for such injury provided by the statute, the various circumstances of the beneficiaries and the deceased and the relations between them are to be ascertained; the certainties, probabilities, and even possibilities of the future are to be considered; and from these data the amount of the compensation is to be estimated by a careful calculation of what would have been the 'reasonably probable pecuniary benefit to the survivor from the continued life of the deceased.'"

In the McKay case it is further said [92 Me. 454, 43 A. 30]: "The age, capacity, health, means, occupation, temperament, habits, and disposition of the deceased and of the beneficiaries are material to be known."And in the case of Oakes v. Maine Cent. Railroad Co., 95 Me. 103, 104, 49 A. 418, 419, it is said that "The earning capacity of the deceased was an important consideration, and this necessarily included not only her physical ability to labor, but the probabilities of her being able to obtain profitable employment."

The Maine court recognizes that "The damages in this class of cases can never be the subject of precise mathematical demonstration or calculation," since "They are based upon the probabilities of the future, which can only be shown by the facts of the past,"(Oakes v. Maine Cent. Railroad Co., supra,) but it also recognizes that "There is some probability that these various circumstances shown to be existing at the time of the death would have continued in more or less degree, had not the death occurred."These circumstances are said to "be subject, however, to acceleration, retardation, interruption, or even extinction, by other circumstances, which may possibly or probably, or even surely, occur after the death.These inevitable, probable, and even possible subsequent circumstances are therefore to be looked for and considered."McKay v. New England Dredging Company, 92 Me. 454, 459, 43 A. 29, 30.Furthermore, it is held that the assessment of damages in these cases is "At best * * * entirely a matter of conjecture,"(Williams v. Hoyt, 117 Me. 61, 63, 102 A. 703, 704), and that the problem presented is one "peculiarly within the province of a jury."Day v. Isaacson, 124 Me. 407, 410, 130 A. 212, 213.

This does not mean, however, that the Maine court declines to exercise any supervisory power over the amount of verdicts returned in death cases.It will not exercise its power "without controlling proof that the jury were influenced by bias or prejudice,"(Day v. Isaacson, supra), but when such proof exists, the court does not refrain from action.The nature and extent of its supervisory powers are stated in the case of Conley v. Maine Cent. Railroad Co., 95 Me. 149, 154, 49 A. 668, 670, as follows: "While it is not our province to assess...