Brown v. Weeks , 79 N.H. 509 ( 1920 )

The action was brought to recover damages for the death of the testate and for the pain and suffering caused by the negligence of the defendant, which, it was alleged, resulted in the testate's death but which the jury found did not have that effect. If the suit had been originally brought to recover for the pain and suffering alone, it could not be doubted that the cause of action would survive under ss. 8-10, c. 191, P.S. Piper v. Railroad, 75 N.H. 435, 440-444. But the fact that recovery was also sought for the death under s. 12 does not preclude a recovery under other sections for the pain and suffering caused by the defendant's negligence when death did not result therefrom. Stewart v. Lee, 70 N.H. 181, 183. The two causes of action are separable, and the ruling of the court was erroneous.

Exceptions sustained: verdict set aside: new trial on the issue of liability for pain and suffering.

All concurred.