Summary
In Tanner v. King, 102 N.H. 401 the plaintiff husband brought a wrongful death action as a "person interested in the estate" but no administrator was ever appointed to prosecute the writ and the defendant's motion for dismissal was granted.
Summary of this case from Owen v. OwenOpinion
No. 4794.
Argued December 2, 1959.
Decided January 27, 1960.
1. An action for wrongful death does not exist by common law and hence any such right of action surviving the deceased is solely by virtue of statute (RSA ch. 556) and only to the extent therein specified.
2. An action for wrongful death of a wife commenced by the husband as "person interested in the estate" under authority of RSA 556:19 may not be maintained unless the administrator of the estate "then or afterward appointed shall, at the first or second term of the court, indorse the writ and prosecute it as plaintiff" as required by such statute.
ACTION AT LAW, brought by plaintiff as administrator under the provisions of RSA 556:19 to recover damages for injuries suffered by Dorothy Tanner, his wife, resulting in her death on May 1, 1956. The writ, dated September 9, 1957, was returnable on the first Tuesday of November, 1957.
Defendant moved for a dismissal of the action on the ground that "the plaintiff herein, has never been duly appointed administrator of the estate of Dorothy Tanner" and "no administrator appointed since the bringing of this action appeared at the first or second term of the court, endorsed the writ and undertook to prosecute this action as plaintiff."
The parties agreed that the quoted allegations of the motion to dismiss are true.
All questions of law raised by said motion were reserved and transferred without ruling by Keller, J.
Shaines Brown (Mr. Brown. orally), for the plaintiff.
Sulloway, Hollis, Godfrey Soden and Arthur W. Mudge II (Mr. Mudge orally), for the defendant.
RSA 556:19 provides that "Any person interested in the estate of a person deceased may begin an action as administrator, which shall not be abated nor the attachment lost because such person is not administrator, nor by his decease, if the administrator then or afterward appointed shall, at the first or second term of the court, indorse the writ and prosecute it as plaintiff."
The question to be decided is whether the plaintiff who began this action for wrongful death as a "person interested in the estate" can prosecute it to a conclusion in that capacity or must it be prosecuted by an administrator who is to endorse the writ "at the first or second term of the court."
An action for wrongful death was unknown to the common law. Burke v. Burnham, 97 N.H. 203, 205. Therefore any such right of action which survived the deceased did so solely by virtue of RSA ch. 556 and only to the extent therein specified. Costoras v. Noel, 101 N.H. 71.
By its terms said section 19 provides that "Any person interested . . . may begin an action as administrator, which shall not be abated . . . because such person is not administrator, nor by his decease, if the administrator . . . shall . . . indorse the writ and prosecute it as plaintiff." (Emphasis supplied). In our opinion the clear import of this language is that the Legislature in the interest of expediency wanted to allow any interested person to initiate such an action provided it be prosecuted thereafter by an administrator. Merrill v. Woodbury, 61 N.H. 504.
This interpretation is consonant with the provisions of RSA 556:14 requiring that the damages recovered in such an action, less certain specified expenses including "the expenses of administration . . . all of which shall be approved by the probate court" are to be distributed to certain specified beneficiaries. This is a strong indication that the Legislature intended that actions to recover damages for wrongful death were to be handled by an administrator accountable to the probate court. This interpretation also insures an orderly procedure in the prosecution of the action and a supervised payment of claims and distribution of the proceeds by placing these matters in the hands of the court-appointed fiduciary.
Being an action for wrongful death, it survived only by virtue of and to the extent specified by RSA ch. 556. Schindler v. Trust Co., 99 N.H. 284. It was begun by the husband as a "person interested in the estate" under authority of section 19 thereof. However no administrator of the estate "at the first or second term of the court indorse[d] the writ and prosecute[d] it as plaintiff" as required thereby. "Without the statute the suit could not have been brought as it was; and no person, legally representing the deceased, appeared within the time fixed by the statute . . . there is no plaintiff in court, and the action cannot be maintained." Merrill v. Woodbury, 61 N.H. 504, 505.
Remanded.
All concurred.