Young v. Aylesworth

• Decision Date: 21 April 1913
• Citation: 86 A. 555,35 R.I. 259
• Parties: YOUNG v. AYLESWORTH et al.
• Court: Rhode Island Supreme Court

86 A. 555

35 R.I. 259

YOUNG

v. AYLESWORTH et al.

Supreme Court of Rhode Island.

April 21, 1913.

Case Certified from Superior Court, Washington County.

Action by Louisa Young against Lyman Aylesworth and others. On certified question from the superior court Question answered as stated.

Amasa M. Eaton and Bellin & Bellin, all of Providence, for complainant.

Samuel W. K. Allen, of East Greenwich, for respondents.

BAKER, J. This case is certified to this court, under the provisions of section 5, c. 298, Gen. Laws, from the superior court for Washington county for the determination of the following question of law: "As against the defendant Lyman Aylesworth, does the cause of action set forth in the declaration survive the death of Lyman Aylesworth?"

This is an action of the case for conspiracy, brought against seven defendants, of whom the said Aylesworth was one. The writ issued April 26, 1911. The case was assigned for trial on February 20, 1913. Said Lyman Aylesworth died November 27, 1912. His death was suggested upon the record January 21, 1913, and on the 6th day of February, 1913, Sarah M. Shippee, executrix of the last will and testament of the said Aylesworth, was ordered by said superior court to appear and take upon herself the defense of this action; 10 days after service of notice of said order upon her being allowed for her appearance herein. On February 17, 1913, Samuel W. K. Allen, Esq., calling himself amicus curi? for and in behalf of said executrix, suggested to the court in writing that she is not bound in law to assume such defense, because said action abated as to said Aylesworth as a consequence of his death as aforesaid. Whereupon, upon March 1, 1913, the foregoing question was certified as above stated.

The gist of the civil action for damages suffered by reason of conspiracy is the actual damage sustained by the plaintiff, and not the confederating together. Plaintiff in her declaration alleges that in 1887 she became a charter member of Davisville Grange, a corporation, and a subordinate grange to the Order of Patrons of Husbandry, and that in 1906 the defendants "did wickedly, unlawfully, and maliciously conspire, combine, confederate, and agree together among themselves with intent to defame her, the said Louisa Young, her to disgrace, shame, and injure, and her to deprive of the benefits to her accruing and belonging through her membership in said grange and Order of Patrons of Husbandry, and her to injure in her good name, reputation, and character as a citizen in the community in which she lives and elsewhere, and her to brand as a former member of said grange and order who had been accused, charged, and tried, convicted, and expelled from said grange and order," by falsely and maliciously bringing charges against her as a member of said Davisville Grange, whereby she was expelled from said order, by reason of which she alleges that she "was grievously hurt, wounded, and injured in her rights as a member of said Order of Patrons of Husbandry, and in her reputation as a citizen and a member of the community in which she lived, and she has ever since suffered and will hereafter continue to suffer great losses, pains, and injuries in consequence thereof, and she was submitted to great mortification of mind, humiliation, public scandal, public shame, infamy, and disgrace and was greatly injured in her standing and reputation in the community in which she lived and still lives by the public scandal, public exposure, public degradation, and public humiliation to which she has been and is still exposed, whereby she has suffered great pecuniary and other losses and mental shock, anxiety, and anguish." The declaration is of great length, 26 pages in all; but the foregoing quotations in substance set forth the character of the alleged conspiracy and the damages claimed to result therefrom.

As this is an action ex delicto, it does not survive at common law; and, if it survives, it does so by virtue of that portion of section 7, c. 283, of the General Laws, which, so far as is important in this case, reads as follows: "Sec. 7. In addition to the causes of action and actions which at common law survive the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive: * * * Third. Causes of action and actions of trespass and trespass on the case for damages to the person or to real and personal estate."

The words "damages to the person," in the Massachusetts statute, similar in phraseology, relative to the survival of actions, have been passed on frequently by the courts of that state. When the substantial cause of action is bodily or physical injury directly resulting from the wrongful act, whether lying in trespass or trespass on the case, the action survives. Cutting v. Tower et al., 14 Gray (Mass.) 183; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298. On the other hand, these words do not extend to torts not directly affecting the person, but only the feelings and reputation. Walters v. Nettleton, 5 Cush. (Mass.) 544; Cummings v. Bird, 115 Mass. 346; Nettleton v. Dinehart, 5 Cush. (Mass.) 543; Smith v. Sherman, 4 Cush. (Mass.) 408.

In this ease the declaration asserts no claim of injury to real estate, and if a cause of action is stated it is for damages to the person or to the personal estate. It is plain, however, from the judicial construction placed upon the words "damages to the person," that no cause of action is set forth in the declaration based upon damages to the person which as to him survives the death of Lyman Aylesworth. The plaintiff makes no claim of survival on this ground. Therefore, if a cause of action is stated which can survive as to the deceased defendant's executrix, it must be found in the allegation of damages to the plaintiff's personal estate. There is no specific allegation in the declaration of injury to the plaintiff's personal estate, and if there be any cause of action of that nature set out it is to be found in the quotation from said declaration which, after an enumeration of various acts and proceedings of the defendants, runs as follows, namely: "On, to wit, the 3d day of March, A. D. 1909, in further pursuance of said conspiracy with the intent and for the purpose aforesaid, the said Thomas G. Mathewson, Charles H. Allen, and Frank E. Vaughn procured the execution of a deed of real estate belonging to the said Davisville Grange, No. 8, to one William R. Essex, a member of said Davisville Grange, No. 8, and an employe of the said Mathewson, wherein the said grange for a nominal consideration conveyed away all of its land, buildings, and personal property to said Essex, colluslvely and for the fraudulent purpose and with the illegal design of conveying away the property of the said Davisville Grange, No. 8, from the said grange, in order to deprive the plaintiff of her rights therein."

There has been some diversity of decisions as to what is meant in the statutes by the words "damages to personal estate." It has been held that the statute must be confined to damages done to some specific property; mere pecuniary loss not being regarded as such damage. See Read v. Hatch, 19 Pick. (Mass.) 47; Barrett v. Copeland, 20 Vt, 244; United States v. Daniel et al., 6 How. 11, 12 L....