Bradley v. Andrews

51 Vt. 525 | Vt. | 1879

The opinion of the court was delivered by

Ross, J.

This action was commenced by Fred. G. Bradley when in life to recover for personal injuries inflicted by the act of the defendant. On his decease the plaintiff was appointed administrator on his estate, and entered to prosecute the suit. The plaintiff also, as the father of Fred. G. Bradley, who was a minor at the time of the injury, brought a suit against the defendant, to recover for the loss of service and expense of caring for and healing the son, in which there has been judgment for the plaintiff. It is now contended that this action died with the intestate, and does not survive, to his administrator. Section 11, c. 52, Gen. Sts., provides : “ If, in any proper action now pending, or which may hereafter be commenced, for the recovery of damages for any bodily hurt or injury occasioned to the plaintiff by the act or default of the defendant or defendants, either party shall decease during the pendency of such action, such action shall, nevertheless, survive, and may be prosecuted to final judgment by or against the executors or administrators of such deceased party.” This language is clear and explicit. There is no occasion to invoke the rules of construction which apply when the language of the statute is ambiguous, or when a literal construction of the language of the statute would work a result manifestly contrary to the intention of the Legislature and the scope of the statute. It has already been held by this court in Whitcomb v. Cook, 38 Vt. 477, and in Earle v. Tupper, 45 Vt. 275, that such actions survive by force of this statute to the administrator or executor of the injured person, and that such administrator or executor can recover therein all the damages, including exemplary damages —in a case proper for the recovery of such damages — which the deceased could have recovered if in life. These decisions are conclusive of the plaintiff’s right as administrator to prosecute this suit, and to recover damages therein to the same extent which the intestate could have done. The intestate, being a minor, could not have recovered anything for loss of service or for expenses of nursing and medical treatment. Hence, the recovery by the plaintiff, as the father, for such items of damage, in a former suit, can be no bar to his recovery as administrator in this suit, of such damages as the intestate himself could have recovered. The intestate could have recovered all the actual damages occasioned to him personally by the injury inflicted by the defendant. These would include the pain, suffering, and physical inability and inconvenience .occasioned by the injury. The County Court limited the plaintiff to the recovery of these damages alone. That it did not, unrequested, also charge the jury that nothing could be recovered for loss of service or expense of nursing and medical treatment, was not error. It is not to be presumed, inasmuch as the exceptions are silent on this point, that evidence of the latter class of damages was admitted. If admitted without objection, it was not necessarily the duty of the court, unrequested, to charge the jury that such damages could not be recovered. It was sufficient that the court clearly and distinctly pointed out the kind of damages for which compensation could be recovered. Error is not to be presumed, but must appear from the exceptions. The legal presumption is, that the proceedings are regular and correct until the contrary is made to appear. It is not claimed that the court did not correctly charge the jury in regard to exemplary damages, if recoverable at all. That they may be recovered in this class of actions is decided by Earl v. Tupper, supra.

Judgment affirmed.