Hooper v. Inhabitants of Gorham

An action brought upon the statute, to recover against a town for a personal injury, caused by a defect in its highway,- and which action was pending when the provisions of c. 87, § 8 of the H. S. of 1857, took effect, will not, after that time, abate by the death of the plaintiff, but may be prosecuted by the executor or administrator of the deceased.

Action of the case, commenced by Edward Hooper, the plaintiff’s intestate, upon the statute to recover damages for an injury to his person, caused by an alleged defect in a highway. The action was entered at the January term, 1857. During the January term, 1858, the said Edward Hooper deceased, and the suggestion of his death was entered upon the docket of that term. At the next (April) term, the administrator appeared, and moved the Court that he be admitted to prosecute this action in his capacity of administrator; to which defendants objected. Thereupon, the parties agreed that the question of the administrator’s right to prosecute be referred to the full Court, on the Report of the case by Davis, J., presiding at Nisi Prius. If the action survives, the administrator is to be admitted to prosecute; otherwise, the action is to be dismissed. That, by the provisions of c. 87, § 8 of R. S. of 1857, this action survives. Trespass on the case is an action brought for the recovery of damages for acts unaccompanied with force, and which, in the consequences only, are injurious, as stated by Espinasse, Dig. p. 598; 1 Com. Dig., Action on the Case, A. Trespass upon the case is the form of expression in use generally, out of New England, even in actions of assumpsit. But we adopt the expression “ of the case,” for the same purpose and as identical in its import. 1 Com. Dig., Actions upon the Case, upon Proniises, A; Am. Precedents, p. 124, note. If there be any distinction, trespass on the case is the more comprehensive and embraces actions on the case. But no distinction is perceived. 1 Chitty’s PI. 132; Files v. Magoon, 41 Maine, 104. That this action abates by the deatlNof the plaintiff. It does not survive by the principles of the common law. Nicholson v. Elton, 13 Serg. & Rawle, 416; Hambly v. Trott, Cowp. 375; People v. Gibbs, 9 Wendall, 29; Stebbins v. Palmer, 1 Pick. 71; Chamberlain v. Williamson, 2 M. & S. 408. The statute in force at the time when the action was commenced, enlarging the causes of action which survive, was the R. S. of 1841, c. 120, § § 15, 16. By this, the following named actions were added to those which survive by law; to wit: — replevin, trover, assault and battery, trespass for goods taken and carried away, and actions of trespass and trespass on the case for damage done to real or personal property. The present action is for damage to the person, and not to property. It does not, therefore, survive by the provisions of the statute of 1840. The statute of 1857, c. 87, § 8, adds to the actions which survive bylaw, the following, to wit: — replevin, trover, assault and battery, trespass and trespass on the case. It is contended that this statute is not, by its provisions, applicable to the case, does not affect it, and that, by it, this case does not survive. 1. Because this action does not come within its description of actions. It is named, in the statute upon which it is brought, 11 a special action on the case,” and is for an injury to the person of the plaintiff. The right and the remedy are both created by the statute — not being recognized by common law. The statute has given this special remedy by which to enforce its created right. It is a mere statute remedy. And, had the Legislature intended that, for an injury like this, the cause of action should survive to be enforced by an executor or administrator, there would have been no necessity of the other enactment in the same section of the statute, on which this action is based, which provides that, in case the life of any person is lost, a given sum may be recovered of the town by indictment, to be paid to the executor or administrator for the use of the heirs, Ac., of the deceased. Where a statute creates a right and provides a remedy, no other remedy lies. Boston v. Shaw, 1 Met. 130; Baird v. Wells, 22 Pick. 312; Walcott v. Upham, 5 Pick. 292. 2. Notwithstanding the statute of 1857 omits the words “ for damage done to real or personal property,” which were contained in that of 1840, still, it is contended that the statute is to receive a construction by the Court. If the language were to receive a literal construction, it would lead to absurdities, and make a class of actions survive which it cannot be supposed the Legislature intended. By such a construction, (if the words “ trespass on the case” are intended to describe an “action on the case,”) all actions in form ex delicto survive. Not only actions of that character for injuries to the absolute rights of persons and property, such as actions for libels and verbal slander, actions for injuries to the health or comfort, as for nuisances, Ac., Ac., but also for injuries to relative rights, as for seducing or harboring wives, criminal conversation, debauching daughters and servants, Ac, Ac. It is not reasonable to suppose that the Legislature intended that such causes of action shall survive, and be commenced or prosecuted by executors or administrators, or that it intended that the named action of trespass on the case shall survive, except for injuries to property, and this idea is strengthened by reference to the language of the ninth section of the same statute of 1857. A" statute is to be so construed as to have a reasonable effect, agreeably with the intention of the Legislature, and, where any particular construction would lead to absurd or unreasonable consequences, it will be presumed that some exception or qualification was intended. A statute is not to be construed according to technical rules; the letter of a statute may be restrained or enlarged, according to the true intent of the Legislature. The question does not, altogether, depend on the mere form of remedy. Smith v. Sherman, 4 Cush. 413. 3. Recause this statute was not in force at the time when the action was commenced, but was enacted whilst it was pending in Court, and, by its terms, applies only to future actions. Statutes are always to be construed as prospective, unless the intention to give a retrospective operation is clearly expressed. Tappan v. Tappan, 10 Foster, (N. EL) 50; Hastings v. Lane, 15 Maine, 134. This ground is assumed, in the first place, upon principle, as there is nothing in the language of the Act indicating an intention to have it operate upon actions already commenced; and, in the second place, for the reason that the Legislature, by its enactment, has prevented its application to pending actions. “The Repealing Statute” of 1857, § 2, contains this language: — “ The Acts declared to be repealed remain in force for the preservation of all rights and their remedies existing by virtue of them, and, so far as they apply to any office, trust, judicial proceeding, right, contract, limitation or event already affected by them.”