158 A. 682 | Vt. | 1932
Arthur Mercure murdered Mary Desautels and then committed suicide. She left a husband and two minor children. Her administrator presented to the commissioners of Mercure's estate a claim for damages to the husband and next of kin under G.L. 3314. This claim was disallowed, and an appeal was taken to the county court, where a trial by jury was had resulting in a verdict and judgment for the plaintiff. The defendant excepted.
The case will be disposed of by the determination of a single question: Did the right given by the statute referred to survive the death of Arthur Mercure? This depends primarily upon the character of that right. The plaintiff's theory is that the statute does not create a new cause of action, but a new right of recovery, a new element of damages. His whole case is built upon this as its foundation. On the other hand, the defendant's theory of the statute is that it creates an entirely new cause of action. And his defense is built on this doctrine as its foundation.
There is much to be said in support of each of these theories. Indeed, much has been said, and each is supported by courts of unquestioned ability. It is impossible to reconcile the numerous decisions to be found in the books, and we shall make no attempt to do so. Our own cases add to the confusion, and, as we shall see, cannot be made to harmonize.
It is confidently asserted that the great weight of authority is contrary to the plaintiff's theory and against his right to pursue the wrongdoer's estate. However this may be, a careful consideration of our own cases discloses a well-established interpretation of G.L. 3314 to the contrary.
This statute was first discussed by this Court in Needham'sAdmx. v. Grand Trunk Ry. Co.,
But in the meantime, an unreported case, Haliday's Admr. v.Dover, General Term, 1881, reached the Court, wherein the very question here presented was raised and considered. An opinion was prepared in effect overruling some of the conclusions of the Needham Case. The Court not being unanimously in favor of this opinion, though a majority agreed to it, it was not published, and the case went off on another point. See case next referred to.
Then came Legg, Admr. v. Britton,
So far, then, as the Needham Case had force as an authority for the defendant here, it was overruled. The Legg Case has never been doubted or criticized by this Court. The distinction therein drawn has been consistently adhered to. In Lazelle v. Newfane,
In Ploof v. Burlington Traction Co.,
In the recent case of Berry v. Rutland R.R. Co.,
Whatever our attitude toward this question might have been if it was here presented for the first time, we do not feel at liberty to depart from this theory of the statute which has endured for more than fifty years without criticism by the profession or interference by the Legislature.
We hold, therefore, that the statute creates merely a new right of recovery which attaches to the right of action arising from the original wrong. By it, a new element of damages is engrafted upon that right of action; it provides "a new principle as to the assessment of damages."
It being thus established that the cause of action here is the one that accrued when Mercure struck the fatal blow, it survives by force of the express terms of G.L. 3311, and recovery can be had in these proceedings.
Judgment affirmed. Let the result be certified to the probatecourt. *215