Isaac v. Denver & Rio Grande Railway Co.

Charles P. Daly, Chief Justice. The complaint alleges that the plaintiffs are the father and the mother of the deceased. By the act of the Territory of New Mexico, set forth in the complaint, and in pursuance of which [343] the action is brought, the right to bring the action is given to the father and mother, or the survivor of them, if the deceased be a minor and unmarried. It is not averred in the complaint that the deceased was a minor, and in the appellants’ points the fact is conceded to be that he was of full age. In my opinion, that puts an end to this case. The statute of New Mexico imposes upon the corporation or individuals referred to in it a forfeiture or liability to pay $5,000 for every person dying from any injury resulting from the causes therein stated, and then provides who may sue for the $5,000. No provision is made for a case like this, of an adult who was unmarried at the time of death; and as the act reads, it is very clear that the father and mother in such a case cannot sue, for, unless a different construction be put upon the words used than their ordinary meaning, the only case where a father or mother are entitled to bring the action is when the deceased is a minor. This was not averred in the 'complaint; and it was essential to show that the plaintiffs had a right to bring the action (Austin v. Goodrich, 49 N. Y. 266 ; Churchill v. Onderdonk, 59 N. Y. 136 ; Williams v. Hingham Turnpike, 4 Pick. 345 ; Brown v. Harmon, 21 Barb. 210). The appellant, however, insists that, as by the general provision of the act, the corporations and individuals therein referred to have to forfeit and pay $5,000 for every person or passenger dying from the causes therein mentioned, we should, as the intention of the law-giver, construe the statute as if the word “ or ” had been used instead of the word “ and ” ; so that the act may read: “ If such deceased be a minor or unmarried, then it may be brought by the father, &c.” It is by no means certain, however, that such was the intent of the framers of the act. It may be, for all that we know, that, in the case of the death of an adult who was unmarried, there was no intention to give a remedy to any one; but in that particular case, to leave the rule of the common law as it was. It is a rule in the exposition of statutes, that they are to be construéd with reference to the [344] principles of the common law, and therefore the law infers that the act did not intend to make any alteration other than what is specified (Dwarris on Statutes, 695). The word “ or ” and “ and ” are not always, in deeds and wills, held to a strict grammatical sense ; but “ or ” may be taken for “ and,” and “ and ” for “ or,” as may best comport with the intent and meaning of the grant or devise (Jackson v. Blanshan, 6 Johns. 57); and this may be done in a statute, but there should be strong reasons, in conformity with a clear intention (Potter’s Dwarris on Statutes 199, note 16), because it is a much more serious matter to make such a change in a statute, as a statute is general in its operation; and it certainly should not be done unless it is very clear that such was the intent, taking the whole of the statute together, the general rule being, in respect to statutes, that words are to be taken in their ordinary sense, and not to be extended or changed to comprehend cases within the supposed intention of the legislature, as courts cannot correct supposed errors, omissions or defects in legislation ; the office of the courts being, as has been said by Dr. Lieber, to bring sense out of the words, and not bring a sense into them (Lieber’s Legal Hermaneutics 87; McClusky v. Cromwell, 11 N. Y. 602; Dwarris on Statutes, c. XII.; Rex v. Barnham, 8 Barn. & C. 104; Potter’s Dwarris 205, note 21,199). The judgment should therefore be affirmed. Labbemobe and J. F. Daly, JJ., concurred. Judgment affirmed.