Hinman v. Director General of Railroads ( 1920 )

The defendant bases his exception on the proposition that it is necessary for the plaintiff to allege and prove that the intestate left heirs-at-law surviving him; that, however, is not the rule in this jurisdiction, for as P.S., c. 191, ss. 8-13 have been construed, the office of s. 8 is to repeal to the extent named in the five following sections, the rule of the common law that actions of tort for physical injuries do not survive. Cochran v. Laton, 78 N.H. 562; Cogswell v. Railroad, 78 N.H. 379, 386; Guevin v. Railway, 78 N.H. 289, 298; Shea v. Starr, 76 N.H. 538; Piper v. Railroad,75 N.H. 435, 440; Carney v. Railway, 72 N.H. 365, 376; Poff v. Company,72 N.H. 164. In other words, the cause of action the plaintiff is attempting to enforce is the one the intestate might enforce if he were alive. It follows that it was unnecessary for the plaintiff either to allege or prove that the intestate left relatives surviving him. The defendant's exception, therefore, must be overruled, but that comes to little if, in fact, the intestate left no heirs-at-law, for while the cause of action survives, it survives for the benefit of those only who are named. s. 13. Consequently the plaintiff will not be permitted to go to trial unless he satisfies the court that the intestate left some of those named in that section.

The defendant, when he made the statements excepted to was asking the jury to find for him because the intestate was a woodsman and left no heirs-at-law; and the fact the court permitted him to repeat these statements again and again subject to exception was equivalent to a ruling that that was permissible. Harrington v. Wadsworth, 63 N.H. 400.

The order therefore must be

Defendant's exception overruled: plaintiff's exceptions sustained: new trial.

All concurred.