16 Mich. 180 | Mich. | 1867
The plaintiff in error (defendant below), was a physician employed by Adams (plaintiff below), to remove a tumor from the uterus of his wife. The wife died three days after the operation; and as the plaintiff below alleges, and the evidence tends to show, the death waii produced by mal-practice — the want of proper skill and cafe in performing the operation. And it is not too much to say that the tendency of the evidence on the part of the plaintiff below, was to show such a total want of skill, and such a degree of carelessness, as would in law make the defendant below guilty of manslaughter.
The action is not brought under the statute, but at common law; the plaintiff in his individual capacity claiming damages, first, for the loss of the services and society of his wife during the three days prior to her death; second, for expenses incurred in nursing and taking care of her during the same period; and, third, for the agony and distress of mind suffered by him in consequence of the injury, “from thence hitherto,” etc.
There was no proper evidence of any expenses incurred.
The only proof of pecuniary damages was the loss of service, shown to be worth fifty cents per day, or one dollar and fifty cents for the three days.
The first question for our consideration is, whether the action can be maintained by the husband for the damages in question, at common law.
But it is claimed that this is the whole extent of the common law rule, and that it does not forbid an action in such case for damages accruing to parties other than the deceased, prior to and not in consequence of the death. Whether the rule is subject to this qualification, or whether it does not prohibit any action for the act or negligence causing the death, and thus apply equally to the damages before and after the death, is the main question here.
By the earliest authorities upon this point, those in which so far as can now be ascertained the rule was first laid down and established, it applied equally to damages accruing prior to the death, and to those which accrued subsequently and in consequence of it; as it forbade any action for the act or negligence which produced death. And the only reason''' given in those authorities for the rule is co-extensive with the rule as thus applied — the merger of the private action in the felony —that by the death, the act or negligence producing it has now become an offense to the Crown, being converted into a felony; and this hath drowned the particular offense or private wrong, and the action is thereby lost. — Higgins v. Batcher, Yelv. 89; Brownlow, 205; Cooper v. Witham and wife, Sid. 375; 1 Levinz, 247.
But this reason thus nakedly stated, resting upon artificial distinction rather than any real principle, and savoring more of the verbal logic of the schoolmen than of justice or common sense, has not proved satisfactory to some of the
But this argument, and this conclusion, are altogether too broad for those who admit, as all now must admit, that the common law, both in this country and in England, still excludes all damages accruing in consequence of the death, whether the means producing the death were felonious or not. And the argument, if valid at all, would go to the extent of sustaining the action for the death, or the damages resulting from it, as well as for those accruing beforel Merger, whether resting on the ground of forfeiture or not, furnishes no ground for this distinction. Forfeiture does not seem to have been assigned in England as the reason of the merger, nor the reason for the rule' excluding an action in cases of felony — at least by any of the decisions which established and settled the rule. But this idea seems to have grown up in this country only because it was thought it would have furnished a better ground for the rule denying the action, than the naked ground of merger.
But there is still another objection to resting the common law rule (forbidding the action) upon the forfeiture which takes place in felony — an objection, it will be seen, which tends equally to show that merger was not the ground, or at least the only ground of the rule. If it rested solely upon the ground of merger, or- that- of forfeiture, Or both
This is but a suspension of the civil remedy until the offender has been tried for the public offense; and it is based upon grounds of public policy, making it the interest of parties who have suffered the private injury to prosecute the offender, to perform their duties to the public, before they seek private redress. See Crosby v. Leng, Supra; Styles, 346; Stone v. Marsh, Supra; and 4 T. R. 332, 333. This suspension of the remedy, however, is still generally spoken of in England under the old designation of merger, and some confusion seems to have been the result; though the courts have explained it by saying it is only a merger for
But if the doctrine of suspension of the remedy be applicable to a case of felonious homicide as well as to other felonies, as I think it is in the English law, it will not any more than that of merger or forfeiture furnish any satisfactory explanation of the distinction between damages accruing prior or subsequent to the death; though if applicable here as in England, it would defeat the present action as effectually as merger or forfeiture, as it does not appear that the defendant has been prosecuted or tried for the offense.
But whatever considerations of public policy may have existed, or may now exist in England, requiring the offender to be tried and convicted or acquitted on the criminal charge, before the civil action is allowed, I do not think that such considerations exist here, or at least to such an extent as to justify the Suspension of the civil remedy, and I think the general understanding of the courts and the profession, in this state, has been that the civil remedy was in no way dependent upon the criminal prosecution.
Public prosecutions for offenses are not in this country, as in England, left to be instituted or conducted by private
But as none of the reasons already mentioned have seemed satisfactory for the common law rule (prohibiting an action for the death of a human being, or for the injury which caused it, whichever may be found to be the extent of the rule), another reason has been assigned which would undoubtedly, have been a sound and sufficient reason, so far as it extends. This is the common law maxim: “actiopersonalis moritur cum persona” (see per Bacon J. in Green v. Hudson River R. R. Co. 28 Barb. 9).
This would furnish an adequate reason why no action could be brought by personal representatives, or others, for such damages as the deceased might have recovered for the injury, if death had not ensued, as the action for such damages would not survive. But this reason could have no application whatever to an action brought by a master for loss of service of his apprentice, or by a husband for those of his wife'; since in these cases the cause of action could never have been vested in the servant or the wife, and could not be lost by the death. There can, therefore, be no such question of survivorship in an action like the present.
And if this were the true reason of the rule, there would be no reason why the master or the husband should not be allowed to recover damages for the loss of service after, as well as before the death of the wife or apprentice.
So far as I have been able to discover, there is but one English case which expressly holds that at common law an
For myself, I think — and the form of expression in which the principle is announced by Lord Mlenborough would indicate that such was his opinion — 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 been or 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. Among barbarous and half civilized nations, it has been common to find a fixed and prescribed standard of value or compensation for human life, which is often found to be carefully graduated by the relative importance of the position in the social scale which the deceased may have occupied. While this has been the natural result, it has at the same time been, to some extent, the cause of their inhuman customs, their barbarous manners and social degradation, and of the comparatively low estimate in which human life has been held among them.
This natural repugnance to which I have alluded, if not the original reason of the rule in question, would at least, in my opinion, have been a much better and sounder reason
And I am by no means satisfied that this is not the only sound and satisfactory basis upon Avhieh the common law rule could have been sustained in England, in modern times.
Based upon this ground, the rule would not prevent an action for damages accruing to a party other than the person injured, up to the time of the death, though caused by the act or negligence which produced it; while it would exclude all which might have accrued in consequence of the death. Such seems to have been Lord JEllenborough’s understanding of the effect of the rule, as applied by him in Baker v. Bolton.
From the best examination I have been able to make of the English authorities, I think it is at least very questionable whether, for more than a century past, there has been any recognized legal principle which would have prevented the recovery of damages in such a case accruing prior to the death, to parties other than the deceased. If there has been any such obstacle, it must have been the doctrine of suspension of the remedy in cases of felony until trial of the offense which still goes by the old name of merger in the felony.
The preamble to the statute (9 and 10 Vict. ch. 93), might, upon a first reading, seem to conflict with this view. “Whereas no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is expedient that the wrongdoer in such cases should be answerable in damages.” This might, on first view, if we adhere strictly
The same clause in reference to felony is found in our own statute (Comp. L. §§ 5003 and 1998). But-this (like the whole section regarding the right of action) is copied literally from the English statute, and can have little effect as a declaration of the previous state of the law here upon, this particular doctrine of merger, when we know the little care taken by legislative bodies in copying statutes, to eliminate unnecessary clauses.
Upon principles of justice and common sense, I think the plaintiff, in a case like the present, should be allowed to recover his actual damages caused by the injury and accruing prior to and not in consequence of the death; and I can discover no substantial objection to such recovery in any recognized principle of the common law applicable here.
Our statute ( Oomp. L. § § 5003, 5004) does not extend to the case, and has no application to the damages here in question, as all the damages which could be recovered for the injury, would be for the benefit of the next of kin of the wife, of whom the husband is not one (Dickins v. N. Y. C. R. R. Co. 23 N. Y. 158), and the damages to which
The injustice of denying the action for damages accruing up to the time of the death, may not be very glaring in the present case, in which the actual damages proved are exceedingly trivial. But the action cannot be denied upon any principle which would not be liable to do great injustice in other cases which may arise. Suppose the wife had lingered for a year or more and then died, in consequence of the injury, and the husband in the mean time had been put to thousands of dollars of expense, in physicians’ bills, medicines, nursing and attendance. No one can doubt that at any time while she was yet living, the husband’s right of action would have been perfect as to the damages accrued up to the time of the action. But she dies the next day after the action is instituted; does his action abate by her death? Has he lost his right, and must he now be denied any compensation for the injury, because it has proved fatal to her ? If so, it seems to me a more substantial reason should be shown for this denial of justice than any I have yet been able to discover. I therefore agree entirely with the Supreme Court of Indiana, in Long v. Morrison, 14 Ind. 595, that the husband’s action which had previously vested, is not extinguished by the subseqent death. See also Green v. Hudson River R. R. Co. 28 Barb. 9; Peck v. Mayor, 3 N. Y. 493; Eden v. L. and T. R. R. Co. 14 B. Monroe, 204; and Whitford v. Panama R. R. Co. 23 N. Y. 479, 480.
The result at which I have arrived renders it necessary to notice some other questions raised upon the trial.
If the injury was not wilful on the part of the defendant, but merely the result of his want of ordinary average care and shill in his profession, was the plaintiff entitled to recover for his own mental agony on account of his wife’s sufferings for the three days prior to the death? This is the form in which the question is presented: the judge
Lord Elleborough, in Baker v. Bolton, above cited, seems to have permitted the plaintiff’s distress of mind on account of the wife’s sufferings up to the time of her death, to be considered by the jury as an item of damages. This was at nisi prius, and the case does not appear to have come before the court in Toanc, and the question is whether this view can be sustained.
Upon principle there are some difficulties in the way of sustaining an action upon such grounds in a case like the present. In the first place it is manifest that the chief cause of the plaintiff’s distress of mind must have been the death of his wife in which the injury resulted, rather than the pain she suffered during the operation, and prior to her death; and it would be very difficult for a jury to apportion the jffaintiff’s mental agony, or to determine with any thing like accuracy how much of it was attributable to one of these causes, and how much the other, and practically it is to be feared that no such distinction would be attempted in the verdict.
I do not claim that this consideration is conclusive of the question, but that it is entitled to some weight.
But there is a more serious objection than this. If the plaintiff has a right to sustain an action for his distress of mind on account of his wife’s suffering, upon what principle can the law refuse a like action in behalf of the father, mother, brother or sister of the deceased, who may have sustained as much mental agony on the same account as the husband? And if these, who are more nearly related, and may have suffered more, why may not her more distant relatives sustain an action on the same principle for their respective portions of mental agony according to their
These considerations show the propriety and good sense of the rule which restricts the right of action for mental suffering to the person wrko has received the physical injury. Had the wife survived the injury, this right of action would have been hers, and neither the husband in his own right, nor any other person could have sustained an action for it; and her death does not transfer it to him. See Whitney v. Hitchcock, 4 Denio, 461; Richards v. Farnham, 13 Pick. 451.
The court below was requested to charge that “if the plaintiff shows himself entitled to maintain this action, and if from the evidence no evil motive be imputed to the defendant, then the rule of compensation is fixed by law, and it is not to be submitted to the discretion of the jury that in such a case exemplary damages are not allowable.”
The court gave the instruction with the following qualification: “As I have just said to you, so here I repeat the sentiment, that you are not empaneled to punish the defendant; but to establish justice and right between the parties, so far as your verdict may be capable of so doing.” And again, the court, in answer to a request of the plaintiff, charged, that “the jury should, if they find that gross negligence is established by the proof, or that the defendant failed, to bring and use a reasonable degree of skill, equal to the ordinary average of skill possessed by gentlemen of the same profession, award by their verdict such damages as, in their opinion in view of all the circumstances of the case, ought to be awarded against the defendant and in favor of
This action for loss of services (at least where no evil motive or even gross negligence is shown) is one which in its very nature, would seem to contemplate the recovery of such actual damages only as should be shown by the proof, under the ordinary rules of evidence. It would seem to be designed for compensation of pecuniary loss only; leaving no room for merely speculative, discretionary, or exemplary damages. See Whitney v. Hitchcock, ub. sup.
It is not like the action on the case'for seduction, which stands upon peculiar reasons of its own, and where loss of service has grown to be almost as much a matter of fiction, as the loss and finding of the goods in trover.
The charge asked by the defendant below upon this point was correct, and should have been given without qualification. A ease can scarcely be imagined in which a specific charge could be more essential to the protection of the defendant’s legal rights, or in which a general charge, leaving law and fact to the discretion of the jury would be more lilcély to lead to an exorbitant verdict. The evidence in the case showed legal damages to the amount of one dollar and fifty cents. The verdict was for two thousand dollars.
The court also erred in not charging, without qualification, as requested by the defendant, that the plaintiff, not having offered any evidence of expenses incurred or paid in regard to his wife, in consequence of the alleged wrongful acts of the defendant, he cannot recover any damages for any such expenses alleged in his declaration, and in adding thereto the following: “But the jury must consider all the facts in the case under these instructions of the court, and award, if damages at all, such damages as in the judgment of the jury, ought to be awarded against the defendant and
The court did not err in admitting the evidence of exclamations of pain and suffering uttered by the deceased, and her complaints as to the nature of her suffering during and after the operation, though some of them were in the absence of the defendant. This is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their nature and extent can be ascertained. . Such exclamations and statements are therefore original evidence; but it was, of course, open to the defendant to show, or to raise an inference if he could, that they were feigned, or intended to deceive. They were clearly admissible as tending to show the malpractice of the defendant, though not for the purpose of aggravating the damages.
It may be that cases of this kind need a remedy which is not adequately given by the common law; but this is a question for the legislature and not for the courts.
It is quite evident that the real grievance which the plaintiff has sustained, is not that for which his action purports to be brought; but the loss of his wife for which no action lies at common law, nor in his behalf under the statute.
The judgment must be reversed, with costs, and a new trial awarded.
I think the exclamations of pain, and the remarks descriptive of her sensations which fell from Mrs. Adams during her suffering were admissible as part of the occurrences themselves; such evidence being the only accessible proofs of facts not open to the observation of others, and being the ordinary result of physical distress. But I think her statements concerning Hyatt are not admissible. Such charges are receivable under certain circumstances in criminal trials, as dying declarations, but not in other suits. No separate exception, however, was taken to the receipt of these specific complaints, and the question only becomes important, inasmuch as a new trial is granted on other grounds.
I think the court erred in the rule of damages. The right of a husband to sue for injuries to his wife only exists where he has thereby been deprived of her society or services, and it has been uniformly held that he could claim no redress for injured feelings, and that he could claim nothing for the loss he sustains by her death.
I have not been able to satisfy my mind as clearly as I should like upon the main question whether any action lies after the death of the wife, for the loss previously sustained. The reason given that a private action becomes merged in a felony, can not apply to cases where the defendant is not a felon, and can not, in most felonies (if not in all), apply where the felon has been prosecuted. The rule that no action will lie for death, while evidently an ancient and settled principle of law, must rest upon some other foundation. And I have been very strongly impressed with the belief, in the entire absence of precedents for suits like the present, that this maxim has been regarded in England as broad enough to prevent any suit for an injury which causes death. The case of Baker v. Bolton, is not distinctly in point, for there the husband had an unquestionable right
There are, however, some American decisions which, without actually deciding this question, seem to go upon the supposition that the law is settled upon the distinction referred to by Lord Ellenborough, who was a more than usually accurate nisi prius judge. The adoption of statutes here and elsewhere removes any objection which might be raised against such actions as against public policy, and I concur with my brethren in sustaining this action, upon the sole ground that the reasoning in the decisions in this country all tends in that direction, and there are two cases which appear to be in point as adjudications.— Lynch v. Davis, 12 How. Pr. R. 322; Cross v. Guthery, 2 Root's R. 95. The rule is not an unreasonable one, and the obscurity which rests over the whole subject, renders it safe to follow any doctrine which has obtained favor in this country. If there had not been so general a disposition here to rest upon the distinction laid down in Baker v. Bolton, I should regard the absence of precedents (where causes of action must have been frequent), and the strong language of the preamble to the English statutes, as decisive against maintaining such suits.
As I do not think the present case necessarily presents the question how far a civil action is suspended by a felony, I withhold the expression of an opinion upon it.
Upon the other points I concur with my brother Christiancy, for the reasons given above.