Opinion
No. 4362.
Argued November 4, 1954.
Decided November 30, 1954.
Where from a reasonable interpretation of plaintiff's declaration it was apparent that he sought to recover the statutory damages for the wrongful death of his mother and it was so understood by the defendant, the action was held to be one for wrongful death (R. L., c. 355, s. 12) brought within the statutory period, and the writ which was improperly entitled could be amended upon a proper showing of error, mistake or injustice although the statutory period had expired.
CASE, to recover damages resulting from the injury and death of Augusta Schindler, wife of Richard F. Schindler. Augusta Schindler was injured on February 18, 1950, while walking in a parking lot which was part of the premises leased to the Great Atlantic Pacific Tea Co. by the present defendant, Nashua Building Trust Co., Inc., and she died on March 30, 1950. Her son, Walter Schindler, was appointed administrator of her estate on April 18, 1950, and brought suit for her wrongful death against the tea company by writ served on May 17 of the same year. After Mrs. Schindler's death her husband, Richard Schindler, sued the tea company for loss of consortium and for the hospital and medical expenses incurred. Richard having died on May 4, 1951, his son Walter was thereafter appointed administrator of his estate and on August 29 of the same year Walter Schindler, administrator, seasonably appeared as party plaintiff, in place of Richard in the case against the tea company. R. L., c. 355, s. 10. On the same day an action entitled "Walter Schindler, Admr. of the estate of Richard F. Schindler v. Nashua Building Trust Company Inc." was brought against the present defendant. Thereafter both suits against the tea company were settled, leaving the action against the Nashua company the only one of the three arising out of Augusta's death still pending.
On April 30, 1954, the defendant moved that the suit against it be dismissed because the statute, R. L., c. 355, makes the action survive only in favor of the representative of the estate of the deceased and not of her spouse, and the estate of Richard Schindler had no legal right to maintain an action to recover for the alleged wrongful death of Augusta. The plaintiff answered requesting that the motion be denied and also asked to amend the writ to show that the suit had been brought by the administrator of Augusta's estate instead of that of Richard's by error, mistake and misfortune. The defendant claims that under section 11 of chapter 355, supra, any action against it for the wrongful death of Augusta Schindler is barred since more than two years have elapsed. Further facts appear in the opinion. Transferred by Grimes, J.
Craig Craig (Mr. William H. Craig, Jr. orally), for the plaintiff.
Sheehan, Phinney Bass and Mr. Joseph F. Devan (Mr. Devan orally), for the defendant.
The sole question we are asked to decide is "whether the trial court has discretion to grant the plaintiff's motion to amend the writ" by substituting "the Administrator of the estate of Augusta. Schindler" for "the Administrator of the estate of Richard F. Schindler." The answer depends on whether suit was brought to recover for the death of Augusta under R. L., c. 355, s. 11, within the two year limitation period therein prescribed. To determine this it is necessary to examine the writ brought by Walter Schindler, administrator of the estate of Richard against the defendant. The declaration sets forth that Augusta slipped on ice and snow in the parking lot owned by the defendant, fell to the ground, and "suffered severe physical pain and mental anguish, fatal injuries and the plaintiff was put to considerable expense for medical, hospital and funeral expenses." It is apparent that the plaintiff was claiming damages for the death of Augusta as set forth in R. L., c. 355, s. 12, which defines the elements of damage in such cases as follows: "the mental and physical pain suffered by [her] in consequence of the injury, the reasonable expenses occasioned to [her] estate by the injury, the probable duration of [her] life but for the injury, and [her] capacity to earn money," together with other elements allowed by law which include burial expenses. Baker v. Salvation Army, 91 N.H. 1, 5. See also, Burke v. Burnham, 97 N.H. 203, and authorities cited. That the parties so understood the situation appears from the depositions in behalf of the tea company and the Nashua company taken February 27, 1952, which are entitled "Walter Schindler, Administrator of the Estate of Augusta Schindler v. Great Atlantic Pacific Tea Company" and "Walter Schindler, Administrator of the Estate of Augusta Schindler v. Nashua Building Trust Company, Inc." The caption recites that the depositions were taken by agreement "at the request of the Defendants." Counsel for the defendant Nashua company appeared and seems to have been under no misapprehension as to the nature of the claim as shown by the questions he asked the administrator. These interrogatories concerned the pain and suffering of Augusta, and also bore on her health and the probable duration of her life. Since the expenses occasioned her estate by the accident had already been thoroughly covered by counsel for the tea company, it is apparent that the questions on behalf of the present defendant were directed at ascertaining the damages in an action for death under s. 12, supra, rather than for the loss of consortium, where the principal elements of damage are for loss of services, society, comfort and marital rights. Guevin v. Railway, 78 N.H. 289, 292, 294.
Although the writ was wrongly entitled and the declaration not as specific as might be desired, yet the substance and not the form is decisive (Mo., Kans. Tex. Ry. v. Wulf, 226 U.S. 570; see also, Ricker v. Mathews, 94 N.H. 313, 318), and we believe that reasonably interpreted in the light of the circumstances, it was an action for damages for death under c. 355, s. 12, brought within the two year limitation prescribed by s. 11. This being so, the Trial Court is advised that it has discretion to grant the plaintiff's motion to amend the writ on a proper showing of error, mistake or injustice.
Remanded.
All concurred.