Eames v. Town of Brattleboro

Injury on Highway. Action Survives. Notice. Bereft of Reason. Damage. Evidence. Exception. 1. The words, “person injured,” used in the proviso to the statute requiring notice to be given to the selectmen in case of injury on the highway, refer to the person injured in the accident, and not to the person injured pecuniarily. 2. The cause of action for injuries received through a defect in the highway, survived, under the provisions of the statute, R. L. ss.'2138-9. 3. The charge to the jury as to damages sustained. 4. A witness denied on cross-examination stating certain things to persons named, which the defendant offered to show by those persons he had said to them ; but it did not appear except by inference that he testified differently from what it was offered to show he had said out of court; or that he testified at all on those points. The exceptions, therefore, do not show error, — and the court will not infer it, — in excluding the impeaching evidence. 5. Acts of 1874, No. 51, notice of damage on highway ; R. L. ss. 2138-9 — action survives — construed.

Action on the case brought by the plaintiff as administrator of Hannah H. Dunklee, deceased, in which he sought to recover for the benefit of the two minor daughters, next of kin, of the deceased, damages claimed to have been sustained by them, by reason of an accident which resulted in the death of the said Hannah H. Plea, not guilty. Trial by jury March Term, 1881, Taft, J., presiding. Yerdict for the plaintiff to recover $1633.33. It was agreed that the plaintiff was the legal administrator; that the accident occurred to the said intestate on the 4th day of June, 1879 ; that she died in about one-half hour thereafter, leaving a husband named Scott Dunklee, and two minor children, aged nine and two years respectively, surviving her ; that the highway on which the accident happened was a public highway, which the defendant town was bound to maintain and keep in repair ; and that no notice of the happening of the accident was ever given to the selectmen, as is provided by the act of 1874, No. 51. The defendant moved the court to dismiss the suit, for want of any such notice ; and because said action could not be maintained under the statute. The court overruled said motion to dismiss, to which the defendant excepted. Scott Dunklee, who was produced by the plaintiff as a witness, testified upon cross-examination that he had not told certain persons' — who were named, together with time and place, — that the accident was not caused by any insufficiency or want of repair of the highway; and that in conversation which he had with the selectmen of defendant town, that he had not said to them that he did not claim any damages, and only asked something by way of a donation for the children. The defendant offered to show that said Dunklee had made the admissions and statements as above stated, to the persons concerning whom he had been specially interrogated. To this evidence the plaintiff objected, and it was excluded by the court, to which the defendant excepted. The court charged the jury as to damage : “ The statute provides that you may give such damages to these parties as you may deem just with reference to the pecuniary injury resulting from such death to the next of kin, to these two children. And the court tell you that in this matter there is a duty resting by law, under certain circumstances, upon a mother to support her children ; but independent of the statute upon that subject, with reference to the support of the mother which the law requires under certain circumstances, where she is of sufficient ability to relieve the town from the-support of the children, the court tell you that this action can be maintained independent of that fact, and independent of the fact whether the children were, dependent upon her for their material support, and independent of the fact whether she was under any legal obligation to support them or not. If there was a reasonable expectation that these children would derive an advantage from the continuance of their mother’s life, capable of being estimated and appreciated in a pecuniary sense, whether she was bound to render any assistance in a legal point of view or not.” .... [“ Now these next kin, for whose benefit this action was brought, are two girls of tender age, one, at the time, being about two and the other about nine years of age; and of such an age as all children, and like all children at that age, need the care and nurture of a mother ; and you as well as any one know how valuable such care is to young children.”] It will be conceded that the action cannot be maintained at common law. But the statute applies only, when “ special damage shall happen to any person, his team, carriage,” &c. This statute conferred a right of action for certain specified in iuries, and described them in plain and unmistakable terms, viz. : “ Special damage to any person,” or bodily injuries, also injuries to his team, carriage, or other special property owned by, or in the possession of, the person at the time of the accident or injury. The plaintiff does not seek to recover damages for injuries which this statute specified and described. He claims damages, arising from the advantages to be derived from the continuance of a life, and includes therein the care, education and training which a mother might have bestowed upon her minor children, and also whatever increased portion of her estate they might have received, had her life been continued. We confidently insist that the language of this statute cannot be tortured into giving a right of action for the kind of damages claimed by the plaintiff administrator in this cause. Baxter v. Winooski Turnpike Co., 22 Yt. 114; State v. Burlington, 36 Yt. 521. The act of 1849 was never intended to apply to towns, and we can find no authorities which conflict with the construction claimed. No new cause of action was created by this act. The original cause of action was simply continued and made to survive. The new principle for the assessment of damages in such cases does not enlarge the act. It will hardly be claimed by plaintiff’s counsel that R. L. s. 2139 grants any cause of action ; it simply points out the class of damages which may be recovered in actions which survive under the preceding section. State v. Burlington; Sedgw. Lead. Cas. Dam. There was error in the charge of the court as to damages. Sedgw. Lead. Cas. Dam. 799. The evidence excluded should have been admitted as affecting the credibility of the witness. We do not claim that it tended to establish any fact, but it was important testimony as bearing upon the character and credibility of the witness, upon whose evidence alone, connected with the circumstances in the case, the jury were to determine the main issue. No notice was required. G-onyeau v. Milton, 48 Yt. 172 ; Wheeloclc v. Rardwiclc, 48 Yt. 19. That the action survives and may be prosecuted in the name of Mrs. D’s administrator, her personal representative, seems entirely clear. These statutes were made for just such cases as this. This case comes entirely within their provisions. It cannot reasonably be claimed that these statutes apply only in case of death of the husband, leaving a widow and children. Section 15 is general in its terms, and applies, we think, to any case where death is caused by the wrongful act of neglect or default of any person ; section 16 provides in whose interest the suit shall be brought — the widow and next of kin, if there be such persons surviving the deceased; and section 17 how or what may be taken into consideration in estimating the damages. By the common law it is the duty of parents to support their minor children. Nothing is so essential to the child as the loving, watchful care of a mother. Reeves’ Dorn. Rel. 283 ; 2 Kent Com. 189; Schouler’s Dom. Rel. 325. Nothing is so valuable as the training and education which every mother can and does bestow upon her offspring. The testimony by which defendant offered to contradict Scott Dunklee’s testimony, given on cross-examination, that he had not told certain persons that the accident was not caused by any insufficiency or want of repair of the highway; that he had not said to the selectmen of defendant town that he did not claim any damages, and only asked something by way of a donation for the children, was clearly inadmissible. 1 Green. Ev. 52, 148, 149.