Walsh v. Bressette

• Decision Date: 25 May 1931
• Docket Number: No. 6656.,6656.
• Citation: 155 A. 1
• Parties: WALSH v. BRESSETTE.
• Court: Rhode Island Supreme Court

155 A. 1

WALSH

v. BRESSETTE.

No. 6656.

Supreme Court of Rhode Island.

May 25, 1931.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Maria Walsh against Daniel C. Bressette. Verdict for defendant, and plaintiff brings exceptions, with motion by John H. Walsh to be made party plaintiff after death of original plaintiff pending disposition of exceptions.

Motion to dismiss denied, and exceptions sustained, and case remitted for new trial.

Peter W. McKiernan, John C. Going, Ernest L. Shein, and William J. Carlos, all of Providence, for plaintiff.

William A. Gunning, of Providence, for defendant.

MURDOCK, J.

This is an action of trespass on the case brought under the provisions of section 14, chapter 333, General Laws 1923, by Maria Walsh, widow of Thomas P. Walsh, who brought suit in behalf of the beneficiaries designated by said statute, who are herself and her children, to recover damages for the death of said Thomas F. Walsh due to the alleged negligence of the defendant in the operation of his automobile. The case was tried in the superior court, and, at the conclusion, of the evidence, the trial justice directed a verdict for the defendant on the ground that there was no evidence of damage to the deceased's estate. The case is before us on plaintiff's exception to the decision of said trial justice.

Thomas F. Walsh was at the time of his death over 70 years of age. He sustained the injuries which resulted in his death in May, 1927. He had not been regularly employed since 1921, when he was earning about $25 per week. He gave up his employment in order to care for his wife, who was in poor health. He helped his wife with the housework, and did odd jobs around the house and yard, which he owned free from mortgage. There was testimony that he could have resumed his former employment and in fact would have done so if not persuaded by his children that he was needed at home to care for his wife.

The trial justice appears to have directed a verdict for the defendant on the authority of McCabe v. Narragansett Electric Lighting Co., 26 R. I. 427, 59 A. 112, 115, where it was said by the court: "When the fact of liability is established, the question of damages becomes as nearly a question of arithmetical computation as the circumstances of the case as disclosed by the evidence will permit." The opinion in the McCabe Case has been interpreted by this court in several cases. In Sebille v. Dunn (R. I.) 99 A. 831, 832, where it appeared that the deceased was a farmer and the testimony as to his income and expenses was indefinite, the court in commenting on the language above quoted from the McCabe Case, said: "In making use of this language it seems to us that the court must have contemplated cases presenting difficulties similar in character to those presented by the case at bar where, from the very nature of things, it would be impossible to determine with accuracy the income and expenses of the deceased." In Burns v. Brightman, 44 R. I. 316, 117 A. 26, 28, where the question as to the right of the statutory beneficiaries to recover for the loss to the estate of a married woman having no income from earnings was considered, the court said: "The mere fact that the person for whose death the action is brought was not at the time of death actually engaged in accumulating property or earning an income does not bar the right of recovery." In Dimitri v. Cienci & Son, 41 R. I. 393, 103 A. 1029, 7 A. L. R. 1336, and in Gill v. Laquerre, 51 R. I. 158, 152 A. 795, it was held that the fact that decedents were minors, and consequently had no earning capacity, was not a bar to recovery."

In the instant case there was some evidence both of earning capacity and expenses of the decedent. The evidence with respect to this phase of the case should have been more specific. There appears to have been no reason why testimony could not have been offered as to the value of work and services which the decedent was performing before his death, and the evidence as to his expenses could have been more specific; but, as there was some evidence on which a verdict could rest, it was error to direct a verdict for the defendant on the ground that there was no evidence of loss to the estate of the deceased. The plaintiff's exception to the decision of the trial justice in granting defendant's motion that a verdict be directed in his favor is sustained.

While the plaintiff's exceptions were pending in this court, the plaintiff died, and her son, John H. Walsh, was appointed administrator of her estate....