Conley v. Portland Gas Light Co.

Whitehouse, J. This is an action against the defendant company to recover damages for negligently causing the death of William John Carey, one of its employees. The declaration contains three counts, and the defendant demurred generally to the declaration and specially to each count. It is unnecessary to consider the numerous objections to the form of the pleadings pointed out and insisted upon as the grounds of the special demurrer, for it is the opinion of the court that each of the counts must be held insufficient for a substantial reason common to them all, not specified as a cause of special demurrer, but interposed as an objection under the general demurrer. Each count in the declaration was manifestly designed to set out a cause of action “for injuries causing death” under the provisions of chapter 124 of the Public Laws of 1891, for it is provided in the second section of that chapter that “ the amount recovered in every such action shall be for the exclusive benefit ” of the widow and children, and be “ a fair and just compensation, not exceeding five thous292 and dollars, with reference to the pecuniary injuries resulting from .such death to the persons for whose benefit such action is brought; ” and each count in the plaintiff’s declaration concludes as follows: “ By reason of all which said defendant has become liable, by force of the statute in such case made and provided, to the plaintiff in his said capacity for such damages, not exceeding five thousand dollars, as will be'a fair and just compensation for the pecuniary injuries resulting from the death of said William John Carey ” to his widow and children. But it is nowhere averred in either count of the declaration that William John Carey died immediately from the effect of his injuries. The first count alleges that he “was severety injured and killed by the explosion of gases . . . and suffered much in body and mind and died within twenty minutes, from Ihe result of the injuries then and there received; ” the second count represents that he “ was severely injured in his head, lacerated and cut in different parts of his 'person and other bodily injuries were sustained by him, and solely from such injuries, and from no other cause, said William John Carey died within a short time, to wit, within twenty minutes after said injuries were received ; ” and the third count simply states that he “received injuries from which lie thereafterwards died.” It is obvious that there is here no averment in either count equivalent to an allegation of immediate death. A precisely similar question was presented on general demurrer in Sawyer v. Perry, 88 Maine, 42, for the express purpose of obtaining from this court a judicial construction of the statute of 1891, c. 124, here' in question. In that case the ‘conclusion was, that the act was intended by the legislature to apply to cases where the persons injured die immediately; and inasmuch as it was not alleged in the declaration that the injured person‘died immediately, but on the contrary it was averred that he lived “about an hour,” it was held that the declaration described only a common law right of action in which the damages recovered must be for the benefit of the decedent’s estate generally and not for the exclusive benefit of the widow, arid that in the form presented, declaring that the action was brought for the benefit of the widow of the deceased, the declaration was demurrable. In the opinion it is said by the court; “And when we say that the [293] death must be immediate we do not mean to say that it must follow the injury within a period of time too brief to be perceptible. If an injury severs some of the principal blood vessels and causes the person injured to bleed to death, we think his death may be regarded as immediate though not instantaneous. If a blow upon the head produces unconsciousness and renders the person injured incapable of intelligent thought or speech or action, and he so remains for several minutes and then dies, we think his death may properly be considered as immediate though not instantaneous.” In the case at bar it has been seen that there is no averment in either count that the injured person died immediately, but in the first and second counts it is alleged that he “died within twenty minutes,” and in the third count that he “received injuries from which he thereafterwards died.” In the first count it also affirmatively appears by express averment that he “ suffered much in body and mind;” and in the second count it fails to appear, either by inference or direct averment, whether he became unconscious from his injuries or endured conscious suffering while he survived. There is, therefore, no substantial ground for distinguishing the declaration in this case from that in Sawyer v. Perry, supra. It is true, that in this case the decedent survived his injuries only twenty minutes, while in that he lived about an hour. But the agonies of body and mind which “no word can speak” may in one case be suffered in twenty minutes, and much larger damages may be required as compensation in such a, case than for the suffering of many hours or days from injuries of a different character. As construed by our court in Sawyer v. Perry, supra, it is obvious that the statute of 1891 in question affords a right of action for “injuries causing death” substantially like that given to employees by the Employers’ liability Act in Massaelmssets. The third section of that Act (c. 24, P. S. of 1887) gives a right of action “where an employee is instantly killed, or dies withoiit conscious suffering;” and it was held in Martin v. Boston & Maine Railroad, 175 Mass. 502, that an action could not be maintained under this statute in a case where the injured person survived and endured conscious suffering less than one minute after the injury. See also Hodnett v. [294] Boston & Albany Railroad, 156 Mass. 86; Green v. Smith, 169 Mass. 485, 61 Am. St. Rep. 296; Willey v. Boston Electric Light Co., 168 Mass. 40. Whether, in the ease at bar, it might not reasonably be considered an immediate death within the meaning and purpose of our statute, if the decedent immediately became unconscious after his injury and remained in a comatose state for twenty minutes or even for- several hours or days until life became extinct, it is unnecessary here to determine. It is clear that the plaintiff in this case claims in his declaration to recover compensation for the pecuniary injuries resulting to the widow and children from the death of the decedent, but describes only a cause of action at common law in which the damages recovered must be for the benefit of the estate generally, and not for the exclusive benefit of the widow and children. The entry must therefore be, Exceptions sustained. Demurrer sustained.