Hooper v. Inhabitants of Gorham

The opinion of the Court was drawn up by May, J. Actio personalis moritur cum, persona is among the most ancient maxims of the common law. It was not, however, universal in its application. It had its exceptions, and these, in England, as well as in many if not all the States in this Union where the common law has prevailed, have been greatly extended by legislation. The ancient strictness of [213] the rule has been constantly giving way before a more enlightened civilization, and a more full and perfect development of the principles of natural justice. Judicial expositions of the statutes, which have been passed touching the survivor-ship of actions and causes of action, seem to have been made in the same liberal spirit which has led to the various enactments. If the language of a statute will allow it, no reason is perceived why such a construction should not be adopted as will give to executors and administrators, for the benefit of heirs or creditors as .the law may require, authority to institute or maintain suits for the recovery of such damages as the deceased party, whom they represent, may have suffered in his lifetime, either in his person or his property, by reason of the tortious or other acts of any person, in the same manner as the party injured might have done if living. The rule of the common law was, that actions in form ex delicto did not survive. It is said that the maxim actio personalis moritur cum persona, is not applied in the old authorities to causes of actions on contracts, but to those in tort which are founded on malfeasance or misfeasance to the person or property of another, which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representatives by the statute law; it being a general rule that an action founded on tort, and in form ex delicto, was considered as actio personalis, and within the above maxim. Broom’s Legal Maxims, 4th ed., 562, and cases there cited. The legislation of this State seems to have followed, substantially, the English statutes of 4 Edward 3, c. 7, and 3 & 4 of Will. 4, c. 42. By our R. S. of 1840, c. 120, § 15, “in addition to actions which survive according to the principles of the common law, the following also shall survive, namely: actions of replevin, actions of trover, assault and battery, actions of trespass for goods taken and carried away, and actions of trespass and trespass on the case for damage done to real or personal property.” It is readily seen that this statute extends its life giving protection to such actions only as [214] relate to the real or personal estate of the deceased, with the single exception of actions of assault and battery. By it the common- law is-left in force as to all .other, actions of tort, which affect only- a man’s health, life, person^ -feelings or reputation; such, for example, as arise from the unskilfulness or negligence: of-a-: surgeon, an attorney, or a stage proprietor, or -for slander or libel, and the like. In such cases no action would survive to the executors -or administrators, nor could be commenced- by them, because they were regarded by the common law, not .so much as representing the person as the personal estate of the testator or. intestate of which they are in law. the assignees. 3 Bl. Com., 16th ed., 302, n. 9; Com. Dig., “Administration,” B. 13. Such was - the law of this State - when this action was com-, menced and until the-revision of-the statutes in 1857. By that revision, c. 87, § 8, it is provided that, “in addition to those surviving by the common law, the following actions survive ; — replevin, trover, assault and battery, trespass, trespass on. the case and petitions for and actions of review; and “ these actions may be commenced by or against an executor or. administrator, or, when the deceased was a party to them, may be prosecuted or defended by them.” . The question now presented is whether these provisions embrace an action like the present, which is a special action on the case, brought-upon the R. S. of 1840, c. -25, §. 89, to- recover damages for an injury to the person of the plaintiff, caused by an alleged defect in a highway. The statute of 1857 differs from that of 1841, as will be seen in this; that in the latter the words “ actions of trespass” are qualified or restricted by the words “for goods taken and carried away” immediately following, and the words “ actions .of trespass, .on the case,” by the words “ for damage done to real .or personal property.” In the present statutes the-.restrictive words, are wholly dropped. What was the intention -of; the.-. Legislature, in this omission ? The words are -,too-,important to have been left out of the last revision without some purpose. What was that purpose ? It could have-been -no other -than to cut off the restrictive qualification [215] which was imposed by these words upon the actions to which they referred, and thus to leave the words “trespass” and “ trespass on the case” to have the same effect as if the restriction had never existed. Such a purpose has nothing in it so unnatural or strange as to lead the Court to seek for some other construction, or cause for the omission of these words, as being more in harmony with the dictates of justice and the progress of legislation upon this subject, than that which we have adopted. No such construction or cause can be found. We see nothing inequitable or unjust in such a construction of the statute as will tend to secure to the heirs or creditors of a person deceased, through the agency of his executor or administrator, a suitable compensation for injuries received by the testator or intestate, when in life, whether such injuries were directly to his property or to his person. Such a construction does no injustice to the tort feasor. It may tend to prevent wrongdoing. Do then the words “actions of trespass,” or “trespass on the case,” as used in the statute of 185T, embrace a case like the present. There is no distinction between an action of the case sounding in tort, and trespass on the case. The difference in the form of the words is accidental rather than real. The authorities cited for the plaintiff show that, notwithstanding the difference in the form of expression, the meaning, the substance is the same. The objection that the statute is prospective in its operation does not apply, because the death of the plaintiff’s intestate was not until after the statute took effect. The result is, that the action, according to the agreement of the parties, the administrator of the deceased plaintiff having appeared to prosecute it, is to stand for trial. Tenney, C. J., Hathaway, Cutting and Davis, J. J., concurred. Goodenow, J., dissenting.