Opinion
No. 3941.
Decided June 5, 1951.
At common law, actions of tort for personal injuries to the person and the causes of such actions did not survive the death of the alleged wrongdoer. Failure of the plaintiff to procure a scire facias before the end of the second term after the original grant of administration upon the decedent's estate, as required by R.L., c. 355, s. 10, abates and bars a pending action of tort for personal injuries against the decedent. Where an action is abated and barred by the plaintiff's failure to procure a scire facias upon the decedent's estate as required by statute there is no liability on the part of the decedent's insurer in the absence of estoppel except in accordance with the terms of its contract.
CASE, to recover for personal injuries alleged to have been suffered on the premises of the defendant because of his negligence. The action was entered at the September term, 1947, and continued from term to term. On November 20, 1948, the defendant died. His wife, Laura G. Pouliot, was appointed executrix of his will on December 21, 1948. The plaintiff failed to procure a scire facias before the end of the second term after the original grant of administration upon the defendant's estate, as required by section 10, chapter 355 of the Revised Laws.
The plaintiff excepted to the denial of his motion on October 17, 1949, that a scire facias be issued. On November 7, 1949, the plaintiff moved that the company that insured the defendant against public liability be declared the real defendant and ordered to continue the defense of the action. This was denied subject to exception. Subject to exception the defendant's motion that the action be abated and forever barred was granted.
The questions of law raised by said exceptions were reserved and transferred by Grimes, J.
J. Leonard Sweeney and Robert J. Doyle (Mr. Doyle orally), for the plaintiff.
Sheehan, Phinney Bass and Alfred J. Chretien (Mr. Phinney orally), for the defendant.
At common law actions of tort for physical injuries to the person and the causes of such actions did not survive the death of the alleged wrongdoer. However, section 10 of chapter 355 of the Revised Laws provides for a right of action that survives the decease of the defendant under certain conditions, but such action can exist only in accordance with the terms of the statute. Halle v. Cavanaugh, 79 N.H. 418. Since the plaintiff did not before the end of the second term after the original grant of administration upon the defendant's estate procure a scire facias to be issued to the executrix of the will of the deceased defendant as the statute provides, the present action abated and is barred.
Barring estoppel, the insuring company cannot be held liable except in accordance with the terms of its contract. Cushman v. County of Grafton, 97 N.H. 32; Boisvert v. Boisvert, 94 N.H. 357. One of the conditions is that: "No action shall lie against the Company . . . until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant, and the Company." Since there is no estoppel in the present case, the insurer cannot be found liable.
Exceptions overruled.
All concurred.