far as to sanction the right to recover for the loss of life, by those whose relation to the dead would have authorized an action for an injury to the living, might most seriously lessen the force of the marital obligation. It would tend to the belief that in all cases where the fault of another has produced an injury, he is responsible for all the consequences, whether they are fatal or not, and the worth of life. might be at last resolved into what might be obtained by a verdict. And where the expectation of indemnity for the loss may depend as much upon the ability of the party to pay as upon the nature of the injury he has produced, there may be less care to avoid danger, and less anxiety to prevent a fatal result from what may have been, under the circumstances, but an ordinary accident."17 Again, it is said that "if a suit should be brought to recover for the mental suffering, loss of society, comfort, support, and protection, resulting from the death of another person, we should see at once, so intertwined is the web of human affection, interest, and relationship, that the author of his death, however slight or accidental his default, would be responsible in numberless actions brought on behalf of wives, children, friends, brothers, sisters, and dependents of all degrees, to say nothing, for the present, of creditors; and for an injury of such incalculable extent, writers on jurisprudence, perhaps without strict accuracy, have assigned the awful magnitude of the wrong as the reason why neither court nor jury have ever been trusted by the law with the function of estimating it."18 Another authority says "that the reason of the rule is to be found in that natural and almost universal repugnance among enlightened nations to setting a price upon human life, or any attempt to estimate its value by a pecuniary standard,—a repugnance which seems to have been strong and prevalent among nations in proportion as they have become more enlightened and refined, and especially so where the Christian religion has exercised its most beneficent influence, and where human life has been held most sacred."19 It has also been said that "the reason why, at common law, an action against a trespasser died with the person, was that it was not so much an action for pecuniary loss as it was for a solatium for the wounded feelings of the plaintiff and for the punishment of the defendant. But the plaintiff could not be solaced nor the defendant punished after death. But our statute confines the recovery to.the amount of pecuniary injury. It does not contemplate solatium for the plaintiff nor punishment for the defend Storer, J., in Worley v. Cincin nati &c. R. Co., Handy (Ohio) 481, 485. 18 Connecticut &c. Ins. Co. v. New York &c. R. Co., 25 Conn. 265, 272. 191. ant." The reasons, generally, above given seem rather to be founded in sentiment than "in right reason." This repugnance "to setting a price upon human life," or the fear, as above expressed, that to give a right of action for the death of a human being would tend "most seriously to lessen the force of the marital obligation," and that, in such event, there might be "less care to avoid danger, and less anxiety to prevent a fatal result," has not prevented the passage of acts fostering the business of life insurance, and certainly these sentiments have not been strong enough to prevent the enactment of the act now under consideration. $6981. Maritime Law Without a Remedy.-An action for injuries on the high seas does not survive the death of the injured person under the maritime law; and a suit in admiralty, unless sanctioned by statute, is not maintainable to recover damages for the death of a human being on the high seas by negligence.21 "Collier v. Arrington, Phill. L. (N. C.) 356, 358. "The Alaska, 33 Fed. Rep. 107; Oleson v. The Ida Campbell, 34 Fed. Rep. 432. CHAPTER CLXXXIII. NATURE AND CHARACTERISTICS OF THE STATUTORY REMEDY. ART. I. ART. II. ART. III. ART. IV. ART. V. ART. VII. Statutes Supplying Omission in the Common Law, §§ 6984-6988. Local Nature of Remedy, §§ 6991-7000. The Wrongful Act, §§ 7004-7009. When Action to be Commenced, §§ 7012-7017. Judgment as Bar to Another Action, §§ 7033-7035. ARTICLE I. STATUTES SUPPLYING OMISSION IN THE COMMON LAW. § 6984. Lord Campbell's Act and Other Similar Statutes.-Most of the States in the Union have enacted statutes for the purpose of compensating the relatives of persons killed by the wrongful act of another. They are generally modelled after Lord Campbell's Act,1 the substance of which is as follows: 1. An action is maintainable against a person causing death through wrongful act, neglect, or default, although the death is caused under such circumstances as amount to a felony. 2. The action is to be for the benefit of the wife, husband, parent, and child, and is to be brought in the name of the executor or administrator and the amount recovered is to be divided among the parties, as the jury may direct. 3. The action is to be commenced within twelve months after the death, and only one action will lie for the same subject-matter. 4. The plaintiff is to give the defendant a full particular of persons for whose benefit the action is brought. 5. Words in the act in the singular number apply to plurality; "masculine" applies to feminine; "persons" to bodies politic 19 & 10 Vict., ch. 93 (enacted August 26, 1846). The first action brought under the statute was Barnes v. Ward, 2 Car. & Kir. 661; s. c. 9 C. B. 392; 14 Jur. 334; 19 L. J. (C. P.) 195. and corporate; "parent" includes father, mother, grandfather, grandmother, step-father, and step-mother; "child" includes son, daughter, grandson, granddaughter, step-son, and step-daughter. In 1864, an amendatory act2 was passed, which provides in substance that: 1. If there is no executor or administrator, or if, there being one, no action is brought in his name within six months after the death, an acbe brought in the names of the beneficiaries. 2. may be paid into court without regard to its division. tion may Money §6985. Whether Liberally or Strictly Construed. These statutes. are generally held remedial in their nature; although holdings are not wanting that require a strict construction on the ground that the statutes are in derogation of the comon law and highly penal in their nature. The laws of Iowa require that the statute shall be liberally construed. It is there held that a statute which provided a civil remedy for the death of a human being, and which only applied to cases where the death was occasioned by the tort of a common carrier or railroad company, was not within the constitutional inhibition that "all laws of a general nature shall have uniform operation," and that. "the General Assembly shall not grant any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”s 7 $6986. Statutes that Create an Entirely New Cause of Action.The statutes of many of the States create an entirely new cause of action, which, though made to depend upon the right of the deceased to have maintained the action had he survived, is distinct from that right. Statutes of this type consider only the losses sustained by the statutory beneficiaries through the wrongful and untimely death of the deceased; and hence it is not important whether the death was instantaneous or lingering, as the pain suffered by deceased could not be an element of the recovery in an action thus limited. Thus, in Con- 227 & 28 Vict., ch. 95. Lamphear v. Buckingham, 33 Conn. 237; Beach v. Bay State &c. Co., 10 Abb. Pr. (N. Y.) 71; Whitford v. Panama R. Co., 23 N. Y. 465; Haggerty v. Central R. Co., 31 N J. L. 349. 'Stewart v. Terre Haute &c. R. Co., 103 Ind. 44; s. c. 1 West. Rep. 152; Illinois Cent. &c. R. Co. v. Johnson, 77 Miss. 727; s. c. 28 South. Rep. 753; 51 L. R. A. 837. Under the New Mexico statute giving to the parent of one killed by the negligence of a corporation a right of action if the deceased be a "minor and unmarried," the word "and" cannot be read "or": Isaac v. Denver &c. R. Co., 12 Daly (N. Y.) 340. 'Lexington v. Lewis, 16 Bush (Ky.) 677; Board of Internal Improvement v. Scearce, 2 Duv. (Ky.) 576. 6 Iowa Code 1897, § 3446. McAunich v. Mississippi &c. R. necticut, Indiana,10 Iowa,11 Kentucky,12 Maryland, 13 Missouri,14 New York, 15 Oregon,16 South Carolina," Texas, 18 and Washington,1o where statutes of this character have been enacted, the action may be maintained whether the death was instantaneous or consequential. In Massachusetts, it is held that the question whether an action for the death of a person may be brought by an executor or administrator depends upon the fact whether the injured party lives after the act which constitutes the cause of action, but it does not depend upon intelligence, consciousness, or mental capacity of any kind on the part of the deceased after he is injured and before death.20 The Employer's Liability Act of the latter State, however, allows a recovery both where an employé is instantly killed or dies without conscious suffering, and where the death is not instantaneous or is preceded by conscious suffering;21 and it is regarded by the courts as a reasonable conclusion that there was a state of conscious suffering if the injured person remained conscious after the injury even for a short time only.22 In Maine, in order that an indictment may lie Broughel v. Southern &c. Tel. Co., 72 Conn. 617; s. c. 45 Atl. Rep. 435; Murphy v. New York &c. R. Co., 30 Conn. 184; s. c. 29 Conn. 496. 10 Malott v. Shimer, 153 Ind. 35; s. c. 54 N. E. Rep. 101. "Werden v. Humeston &c. R. Co., 72 Iowa 201; s. c. 33 N. W. Rep. 629. 12 Louisville &c. R. Co. v. Coniff, 90 Ky. 560; s. c. 14 S. W. Rep. 543. 13 See Tucker v. State, 89 Md. 471; s. c. 43 Atl. Rep. 778; 44 Atl. Rep. 1004. 14 Matz v. Chicago &c. R. Co., 85 Fed. Rep. 180. 15 Brown v. Buffalo &c. R. Co., 22 N. Y. 191. 10 Perham V. Portland General Electric Co., 33 Or. 451; s. c. 53 Pac. Rep. 12, 24. 17 Ex parte Northeastern R. Co., 60 S. C. 401; s. c. 38 S. E. Rep. 634; In re Mayo's Estate, 60 S. C. 401; s. c. 38 S. E. Rep. 634; Reed v. Northeastern R. Co., 37 S. C. 42; s. c. 16 S. E. Rep. 289. 18 Sternenberg v. Mailhos, 99 Fed. Rep. 43; s. c. 39 C. C. A. 408; International &c. R. Co. v. Kindred, 57 Tex. 491 [distinguishing Winnt v. Railway Co., 74 Tex. 32; s. c. 11 S. W. Rep. 907; 5 L. R. A. 172]. 19 Northern Pac. R. Co. v. Adams, 116 Fed. Rep. 324. 20 Mann v. Boston &c. R. Co., 9 Cush. (Mass.) 108; Kearney v. Bos ton &c. R. Co., 9 Cush. (Mass.) 108; Hollenbeck v. Berkshire R. Co., 9 Cush. (Mass.) 478; Bancroft v. Boston &c. R. Co., 11 Allen (Mass.) 34. Where plaintiff's intestate was not found until ten minutes after the injury, and was then unconscious, but died immediately thereafter, and there is no evidence of conscious suffering or loss before death by reason of the accident, nominal damages only are recoverable: Mulcahey v. Washburn Car Wheel Co., 145 Mass. 281; s. c. 5 N. Eng. Rep. 289; 14 N. E. Rep. 106. 22 21 Mass. Laws 1887, ch. 270, as amended by Laws 1892, ch. 260. Mulcahey V. Washburn Car Wheel Co., 145 Mass. 281, 287; s. c. 14 N. E. Rep. 106; Martin v. Boston &c. R. Co., 175 Mass. 502; s. c. 56 N. E. Rep. 719. There being testimony that after the injury deceased exclaimed, "Oh! I am gone. Boss, it isn't any use, I am done for," and that he "hollered" once or twice and groaned three or four times,-the question was for the jury whether his death was preceded by conscious suffering, within the Massachusetts Employers' Liability Act, allowing recovery by a widow or next of kin both where the employé is instantly killed, and where death is not instantaneous or is preceded by conscious suffering: Knight v. OverIman Wheel Co., 174 Mass. 455; s. c. 54 N. E. Rep. 890. |