Westcott v. Central Vermont R. Co.
| Decision Date | 01 May 1889 |
| Citation | 17 A. 745,61 Vt. 438 |
| Parties | ADDIE C. WESTCOTT, ADMX. v. CENTRAL VERMONT R. R. CO |
| Court | Vermont Supreme Court |
JANUARY TERM, 1889
Judgment affirmed with leave to replead.
Hard & Cushman, for the plaintiff.
Tyler J., being absent in County Court, did not sit.
When the death of a person results from the tortious act or neglect of another, two rights of action may arise, one to recover damages sustained by the deceased at the time of or after the injury and prior to his death; the other to recover damages to the widow and next of kin. Both rights must be prosecuted in the name of the personal representative of the deceased. In this case it is insisted under a general demurrer, that the declaration is defective in that it does not show for which cause of action the plaintiff is seeking to recover, the defendant claiming that it should be explicitly averred whether the actions were brought for the benefit of the estate or of the widow and next of kin. We think it should so appear from the declaration, and the question is, does it in the one under consideration? It is apparent that the substantial averments of the declaration in both cases must be the same i.e., that the death of the intestate was caused in this State, by the tortious act, neglect or default of the defendant, and that the plaintiff is the personal representative of the deceased. If the declaration contains the above averments it is sufficient, and under it a recovery can be had for any damages sustained by the deceased on account of the cause of action mentioned in R. L. ss. 2134-5. But when to the above averments is added the allegation that the intestate left a widow and next of kin, or either, it sets forth a cause of action under the subsequent sections 2138-9. Every fact which it is incumbent upon the plaintiff to prove is fully set forth in such a declaration. Why, then, is it not sufficient? It is only by force of the statute that an action for the benefit of the widow or next of kin can be maintained, and in bringing it the pleader could have recited the statute, counted upon it, or without referring to it in any manner, alleged those facts which brought the case within the terms of it, stating those facts upon which the claim was sought to be maintained. Gould's Pl. ch. 3, s. 15, note 3. In respect of this question, which is made under points 1, 2 and 5 in the defendant's brief, we hold the declaration sufficient under sections 2138-9 to permit a recovery for the benefit of the widow and next of kin. It is contended that there is no allegation that the deceased left a widow or next of kin, but the fact is otherwise. In the original writ the person killed is described as deceased, leaving a widow and one minor child. This part of the writ, although descriptive of the person, may be referred to to help out the want of a material averment in the declaration. Church v. Westminster, 45 Vt. 380. In the additional count it is alleged that Westcott was killed, leaving a widow and next of kin surviving. Such an allegation is undoubtedly necessary, and in this respect both counts are sufficient. There is no allegation in the declaration that the widow and next of kin were living at the time the suit was brought, and the defendant insists that the declaration is defective for that reason. We think it depends whether the...
To continue reading
Request your trial