Summary
awarding attorney fees and reaffirming the substantive decision ordered at 93 N.H. 147, 42 A.2d 386
Summary of this case from In re Estate of FontaineOpinion
No. 3534.
Decided June 5, 1945.
A question of law once decided is not reconsidered in the same case except upon a motion for rehearing. The phrase "expenses of recovery" in R. L., c. 355, s. 14, providing for distribution of damages recovered in a death action includes attorney fees and expenses. It is within the power of the Legislature to diminish the effect of the defense of contributory negligence.
CASE, for negligence. This is the same action to recover for death that was transferred previously and in which an opinion was rendered in March, 1944, ante, 147. In accordance with that decision the plaintiff petitioned the Probate Court for Hillsborough County for approval of the expenses of recovery, the expenses of administration, the necessary charges for the burial of the deceased and the reasonable charges for the last sickness of the deceased. An appeal was taken by the defendant to that court's decree. Any right to a jury trial was waived by him and the Superior Court heard the appeal and the question of the amount of the verdict to which the plaintiff is entitled. The trial Justice determined the total expenses of the four classes enumerated above, deducted them from the verdict of the jury plus taxable costs. Then one-half of the balance, which was the forfeited share of the negligent parent, was deducted from the total jury verdict and costs. The Court ordered a verdict to be entered for the balance with statutory interest. The defendant excepted to the denial of his motion that the petition be dismissed, to the denial of certain requests and to the findings, rulings and order of the Court.
The questions of law raised by said exceptions were reserved and transferred by Blandin, J.
Thomas J. Bois and Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for the plaintiff.
Charles F. Hartnett (by brief and orally), for the defendant.
The procedure outlined in the former opinion has been correctly followed. "A question of law once decided is not reconsidered in the same case, except upon a motion for rehearing." Olney v. Railroad, 73 N.H. 85, 91. The question of the constitutionality of R. L., c. 355, s. 14 was raised by the defendant in his motion for a rehearing on the former transfer, and there is no necessity of that subject being considered again.
Whether the phrase "expenses of recovery" includes attorney fees is a new matter. In view of the fact that it is difficult to conceive of what other expense an administrator would have in obtaining damages by an action at law for the death of his intestate, beside the bill of the attorney for his services and cash out, it is reasonable to construe the phrase as including such fees. Cases to the effect that the losing party in litigation should not be obliged to pay counsel fees except in exceptional instances are not in point. No one claims that the defendant should pay more than the amount of the damages awarded by the jury with taxable costs. The issue is how much he should benefit by the contributory negligence of one of the statutory beneficiaries. Such negligence bars only the recovery of the share of the distributee at fault and not the payments due others under the statute. That the Legislature has the power to lessen the effect of the defense of contributory negligence cannot be doubted. It may abolish defenses as to causes of action arising in the future, provided no provision of the constitution is violated. 16 C.J.S. 676, and cases cited.
The defendant argues that the attorney fees allowed were excessive. However in the absence of the transfer of the evidence concerning that issue, this court cannot rule that there was any abuse of discretion. Other points raised by the defendant's exceptions do not require discussion.
Exceptions overruled.
All concurred.