Prescott v. Knowles

Dickerson, J. This is an action of trespass to recover damages for personal injuries done to the plaintiff’s intestate by the defendant’s dog. The presiding justice sustained the motion of the defendant to dismiss the action, on the ground that it does not survive, and the plaintiff excepted to this ruling. There is no question but that the action does not survive at common law. Does it survive under our statutes ? The provision for the recovery of double damages by an action of trespass for injuries to person or property by a dog, has been retained without material change in all the revisions of the statutes since 1841, while the restrictions upon the survivorship of actions of trespass, [279] and trespass on the case provided in that revision, were omitted in both of the revisions of 1857 and 1871. It was held in Hooper v. Gorham, 45 Maine, 215, that the purpose of this omission was to remove the restrictions imposed by the statutes of 1841 upon the survivorship of actions of trespass and trespass on the case. This omission, however, would not make such actions survive, without some statute to invest them with the character of survivorship. By our statutes, trespass lies for this class of injuries, and actions of trespass and certain other actions survive in addition to those that survive at common law. R. S., c. 30, § 1, and c. 87, § 8. These provisions of the statutes make no distinction in respect to survivorship, between actions of trespass upon the person and upon property; or between actions of trespass at common law and actions of trespass created by statute; all these several kinds of actions of trespass are' included in the term “actions of trespass.” The same section of the chapter that provides for the survivorship of actions of trespass, also provides that such 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. Section 9 of the same chapter expressly contemplates the survivorship of this class of actions, in the provision it makes for the recovery of actual or single damages only, when an action of trespass or trespass on the case is commenced or prosecuted against an executor or administrator. The obvious construction of this provision is, that while, in this class of actions, punitive, penal or double damages may be recovered of a living defendant, only actual damages are recoverable against the estate of a deceased party in the hands of his representative. In the language of the com! in Hooper v. Gorham, ante, “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 the injuries received by the testator or [280] intestate when in life, whether such injuries were directly to his property or his person. Such construction does no injustice to the tort feasor. It may tend to prevent wrong doing.” Exceptions sustained. Appleton, C. J., Barrows, Daneorth and Yirgin, JJ., concurred.