French v. Mascoma Flannel Co. , 66 N.H. 90 ( 1889 )

At common law, causes of action which affect the estate survive for or against the executor, and those which affect only the person die with the person. Section 16, c. 198, Gen. Laws (that an administrator may prosecute or defend any action pending for or against the deceased, whether the cause of action does or does not by law survive, if he or the surviving party so elect) applies only to actions commenced in the lifetime of the deceased. If no action has been brought by the party injured where the cause of action does not survive, none can be by his personal representative in the absence of any statute permitting it. Accordingly it was held, in Wyatt v. Williams, 43 N.H. 102, that an action by the wife will not lie to recover damages for the killing of the husband, whether caused by a felonious act or by negligence; and in Vittum v. Gilman, 48 N.H. 416, reaffirmed in Jenkins v. French, 58 N.H. 532, that a cause of action against a physician or surgeon arising from want of care or skill in the cure of the patient does not survive against the executor. "The line of demarcation separating those actions which survive from those which do not, is, that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the property and rights of property affected are incidental." Jenkins v. French, supra; — see, also, Sawyer v. Railroad,58 N.H. 517, and Clark v. Manchester, 62 N.H. 577.

The first innovation in this state upon the common-law rule that a personal action dies with the person, unless s. 16, c. 198 G. L. (identical with c. 139, Laws 1844, c. 161, s. 16, R. S., c. 179, s. 16, G. S.) is an exception, is the statute of 1850, c. 953, reenacted in G. S., c. 264, s. 14, and again in G. L., c. 282, s. 14, which applied solely to railroad corporations, proceeded by indictment, and imposed a fine for the benefit of the widow and children, in case the life of a person not in the employment of the road should be lost by reason of the negligence or carelessness of the proprietors of the road. This statute was expressly repealed in 1879, and in its stead was enacted a statute applying to all persons, natural as well as artificial. Laws 1879, c. 35. It provided that when the death of a person is caused by a wrongful act or neglect of another, which, if death had not ensued, would have entitled the person injured to recover damages therefor, on the death of such person his executor or administrator may, by suit brought within two years of his death, recover damages for the injury for the benefit of his widow, children, and heirs. The act of 1885, c. 11, providing that "No action or cause of action shall be lost by the death of either party, but the same shall survive for or against the personal representatives of the deceased," removed every bar imposed by the common law to the bringing of actions by an executor or administrator for personal injuries resulting in death. The time for bringing such actions, instead of being limited to two years from the death of the person injured, was left to be governed by the general statute, which provides that all personal actions, except actions of trespass to the person and actions for defamatory words, may be brought within six years after the cause of action accrued. G. L., c. 221, s. 3.

If there had been no other legislation upon the subject, the plaintiff might recover under his declaration, which sets forth the common-law cause of action. But in 1887 the act of 1879 was expressly repealed, and in its stead was enacted a statute giving to the executor or administrator of a person whose death is caused by the wrongful act or neglect of another, an action for the injury to the person and estate of such person. Laws 1887, c. 71. It is claimed by the defendants that the act of 1887, if it did not by implication repeal the act of 1885, imposed upon it the condition of notice to the defendants within sixty days after the injury was sustained. The cause of action given by the statute of 1887 differs in many respects from the common-law cause of action, and from the cause of action given by the statute of 1879. In the statute of 1879 the damages were limited to such as the deceased, if living, might recover. Corliss v. Railroad, 63 N.H. 404; Clark v. Manchester,62 N.H. 577. But they were not limited in amount. By the statute of 1887, damages not exceeding $7,000 may be recovered for the mental and physical pain of the injured person, the expense occasioned to him in his life and to his estate upon his decease, and there are also to be considered his probable duration of life and earning capacity but for the wrongful act or neglect which caused his death.

The express mention in section 4 of the repeal of the statute of 1879 excludes the inference that the repeal by implication of the act of 1885 was intended. The maxim expressio unius applies. The fact that the act contains no clause repealing any other statute than that named, is an indication that the legislature did not understand that the act of 1887 was inconsistent with them. Colby v. Cate, 64 N.H. 476, 478.

If the act of 1885 was repealed, it would seem to follow that s. 16, c. 198, Gen. Laws, admitting an administrator to prosecute or defend any action pending for or against the deceased, was also repealed. It hardly admits of doubt that there was no such legislative intent. Prior to 1887, the various statutes successively modified the strictness of the ancient maxim, reversing the common law concerning the survivorship of actions and causes of actions. We fail to discover any purpose of the legislature of 1887 materially to modify the action of its predecessors in these respects. On the contrary, the statute recognizes a wrong to the family of a deceased person, and gives an additional cause of action. In addition to the injury to the deceased and to his estate, there may be recovered the injury to his family occasioned by his death. The word "injury," in section 1, includes (1) the injury to the person injured until he dies, and (2) the injury to his widow, children, or heirs by reason of his death. The words "suit shall not be brought for such injuries," in section 2, refer to "injury" in section 1. This is the only negative clause in the statute. The act of 1885 did not repeal the act of 1879. So, if the act of 1879 had been passed after that of 1885, it would not have repealed it.

In Massachusetts it is held that their statute (Statutes of 1887, c. 270, s. 1, cl. 1) giving to an employe exercising due care a right of action for an injury caused by "any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer," arising from the employer's negligence, is not a bar to an action at common law, brought by an employe for personal injuries caused by a defect in such machinery, for which such an action might have been maintained before the passage of the statute. Ryalls v. Mechanics' Mills, 150 Mass. 190.

In this case the notice required by the statute of 1887 was not given within the sixty days. The plaintiff's intestate was prevented by death from giving it, and no administrator was appointed for more than sixty days from the time of the injury. Whether in such case, or in any case where compliance with the statute in this respect is impossible, notice may be given after the lapse of sixty days and when the disability is removed, or whether an action under the statute may be maintained without the notice being given, are questions that need not be considered.

Demurrer overruled.

ALLEN, J., did not sit: the others concurred.