171 F. 269 | U.S. Circuit Court for the District of Rhode Island | 1909
This is a demurrer to a declaration for negligence. The first and second counts allege that as a consequence of injuries received the plaintiff’s intestate was incapacitated to labor, was rendered insane, and put to great expense for medical attendance, etc. Neither .the first nor second count alleges that death ensued in consequence of the injuries. Where death does not ensue from the injuries complained of, but from other causes, an action survives, but of different character from that which is given by the statute in case of death. Lubrano v. Atlantic Mills, 19 R. I. 129, 32 Atl. 205, 34 L. R. A. 797. The statute providing for survival of actions embraces actions for injuries to the person other than those which result in death. The first ground of demurrer, that the causes of action in the first and second counts do not survive the death of the intestate in this state, is not well taken.
The third and fourth counts allege that death ensued in consequence of the injuries. They also allege pain and suffering, incapacity to earn wages during lifetime, etc. Each of these counts is, in my opinion, subject to the objection that it contains allegations of pain and suffering, etc., which are irrelevent in view of the allegation that the injuries resulted in death.
The question of the right of the plaintiff to join in a single declaration counts which allege that the injury resulted in death and counts which do not allege that death ensued is not properly raised by the demurrers. The plaintiff’s counsel at the argument stated that, in view of the uncertainty of the question of fact whether the death of plaintiff’s intestate more than two jrears after the date of' the injury was due to the injury or to other causes, he has declared in the first and second counts on the theory that death did not ensue and in the third and fourth counts on the theory that death did ensue -as a -direct consequence of the defendant’s negligence. While these are distinct causes of action (Union Pacific R. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983), I see no reason why counts of this character may not be joined in a single action (Gould’s
The third and fourth counts should be amended by striking out all matters which are relevant only in an action where death does not ensue.
The demurrer is sustained as to the third and fourth counts; defendant to amend within two weeks.