63 N.J.L. 558 | N.J. | 1899
The opinion of the court was delivered by •
The sole question presented on the record is, Did the action abate on the death of the next of kin for whose benefit suit was brought? The administrator of the deceased is the party on the record in whose name as party the suit is prosecuted. The suit, therefore, did not by the practice and procedure at common law abate for the want of parties. The death of the administrator would not abate the suit. The suit would be continued in the name of the new administrator. Mundt v. Glokner, 24 N. Y. App. Div. 110. The substantial question in the case is whether the cause of action once vested was lost by the death of the beneficiary for whose benefit the suit was prosecuted. The question, therefore, is not one of procedure, but of right. Martin v. Baltimore and Ohio Railroad Co., 151 U. S. 673.
By the common law, actio personalis moritur cum persona, and the death of the sole plaintiff or the sole defendant before final judgment abated a personal action. The principle on which this rule rested was that the cause of action did not survive to the personal representatives of a deceased person.
The first modification of this common law rule was>made by the statute of 4 Edw. III., c. 7, which enacted that executors should have an action against trespassers for a trespass done to their testators, as of the goods and chattels of the testator carried away in life, and recover damages against the trespassers in the same manner as they whose executors they be should have had if they were in life. This right was extended to executors by 25 Id., c. 5. By construction the statute was extended to administrators and to actions on the case and actions of assumpsit on simple contracts. Pinchon’s Case, 9 Co. 86, 89. The statute of Edward III. did not extend to actions for injuries to the person or to the testator’s freehold. The latter causes of action were left subject to the common law rule.
In this state the common law doctrine for the remedy of which the statutes of Edward III. were passed was further modified by the act of March 17th, 1855. The efficient words in this statute are “ trespass to the person or property, real or personal.” For such an injury the statute provides that the action shall survive to and against personal representatives. The first section, which confers a right of action upon executors and administrators to maintain an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, limits the damage to such damages “ as the testator or intestate might have had or maintained if he or she was living.” The second section, which imposes a liability upon executors or administrators for any trespass “to the person or property, real or personal, done by the testator or intestate in his lifetime,” limits the right of action to the same action against
This act did not give a remedy for injuries resulting from
The status of the maxim actio personalis moritur cum persona in our judicial system will be exemplified by comparing Hayden v. Vreeland, 8 Vroom 372, with Noice v. Brown, 10 Id. 569. The opinion in each of these cases was delivered by Mr. Justice Van Syekel. In the first case it was held that an action for the breach of a promise of marriage could not, either at common law or within the act of 1855, be maintained by or against the personal representatives of either party to the contract, and was abated by the death of the defendant after issue joined. In the other case it was held that an action by a father for the ■ seduction of his daughter in his lifetime might be maintained .by his personal representatives. The decision in the first case was placed upon “ the exceptional nature of the contract, the injury being purely personal.” The learned judge in his opinion says: “This action does not survive at common law, not because it is not an action ex contractu as distinguished from tort, but for the reason that the injury is purely personal, in which the representative of the estate has no interest. * * * Its peculiarity lies in the fact that the injury to be compensated is exceptionally personal.” In the second case the action was sustained on the ground that the wrong was of a twofold nature, wounding the father in his feelings and affecting his property rights, resting as it does on the technical ground •that by the injury he lost service of some pecuniary value. The distinction between the two cases consists in that in the former the injury was purely personal and in the latter the ■cause of action related to property rights, which gave to the •suit the quality of survivorship and took it out of the maxim actio personalis moritur cum persona. The force of these decisions, especially the last, will be apparent when the construction and effect of the act under which this suit was brought are considered.
The law on this subject was amended in England by 9 and
The English courts in construing Lord Campbell’s act hold that the statute gave to .the personal represeptatives a. cause of action beyond that which the deceased Would have had'if he had survived, and based on a different principle — a new right of action. Pym v. G. N. Railway Co., 4 Best & S. 396 ; Blake v. Midland Railway Co., 18 Q. B. 93, 110. In Seward v. Vera Cruz, 10 App. Cas. 59, 67, 70, in the House of Lords, Lord Selborne in construing Lord Campbell’s act says: “ It gives a new cause of action clearly, and does not merely remove the operation of the maxim actio personalis moritur eum persona, because the action is given' in substance not to the person representing in point of estate the deceased man, who would naturally represent him as to all his own rights of action which would survive, but to his wife and children, no doubt suing in point of form in the name of his executor.” Lord Blackburn said that “ a totally new action
The grounds on which this common law rule was vindicated were that the policy of the law refuses to recognize the interest of one person in the death of another and that the value of human life is too great to be estimated in money. Poll. Torts 56, 57. In both of these respects the statute has wrought a change in the common law. The title of the act expresses the legislative purpose to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default. This purpose is consummated by enacting that the person or corporation whose wrongful act, neglect or default caused the death should be liable in damages; and the action brought in the name of the personal representatives of the deceased is given for the benefit of the widow and next of kin of the deceased; and the method by which the damages are to be adjusted is prescribed by the legislature to be such as the jury should deem fair and just with reference to the pecuniary injury resulting
The pecuniary injury of the beneficiary begins immediately on the death of the deceased, and is a continuing injury until compensated for under the conditions expressed in the act. Suit must be brought within one year after the death of the deceased, but how long the litigation may be protracted is problematical. If the death of the beneficiary before the end of the litigation discharges the liability of the wrongdoer, the legislative purpose that the wrongdoer should make compensation to the beneficiary for the pecuniary injury sustained by him would be defeated. Such a construction would be contrary to the policy of this legislation and would thrust into the administration of a statutory proceeding, which our courts have declared should be beneficially construed, a technical rule of the common law of harsh injustice.
The death of the beneficiary pending suit will have a con
It may be gathered from the record that the injury that caused the death of the deceased occurred on the 25th of January, 1896. The suit was brought on the 1st of December of that year, and it was brought on for trial in January, 1898. By the record, it appears that the plaintiff produced testimony tending to show that the death of the plaintiff’s
The judgment of nonsuit should be set aside.
For affirmance — None.
For reversal — The Chief Justice, Depüe, Van Syckel, Dixon, Garrison, Lippincott, Gúmmere, Ludlow, Bogert, Nixon, Hendrickson, Adams, Vredenburgh. 13.