11 A.D. 164 | N.Y. App. Div. | 1896
The plaintiff was the mother of one Clara 0. Eelson, now deceased. The deceased was an infant, unmarried, in the service of her mother, her father being dead. The defendant is -a physician and attended said Clara in her last illness. The action is brought on substantially two causes of action. The first charges the defendant with malpractice in his attendance on the patient, by reason of which said Clara died. The second cause of action charges that, after the death of Clara 0. Eelson, the defendant maligned her memory by repeating to the plaintiff, and to divers othór persons, a false, untrue and malicious charge that the said Clara had been pregnant and had had a miscarriage. The plaintiff recovered a verdict for $5,000.
It clearly -was the rule at common law that no civil action would lie for causing the death of a human being. (Cooley on Torts, *262.) While a husband or parent might maintain an action for a wrong causing loss of services from a wife or child, if the injury resulted in death, this could not, at the common law, be taken into account either as a ground of action or as an aggravation of damages, and the plaintiff’s recovery would be limited to loss of service intermediate the injury and the death. (Cooley on Torts, *226.) The exact question was determined by the Court of Appeals in Green v. Hudson River R. R. Co. (2 Abb. Ct. App. Dec. 277). Since the time of that decision, I cannot find that there has ever been in this State a contention for the contrary rule. Of course, for many years the statute has prescribed a remedy for such wrongs. An action for a wrongful act causing the death of any person may be maintained by the executor or administrator of such person for the benefit of his next of kin. (Code Civ. Proc. § 1902.) The plaintiff, however, has not brought this action in such capacity. But, though the trial court erred in assuming that the plaintiff could maintain an action for the death of her daughter, still there was enough in the complaint and in the evidence to show that the daughter was sick for some few days prior to her decease. For loss of services during this period and the expense of care and attendance during the like time, the plaintiff was entitled to recover. Therefore, the defendant’s motion to dismiss the complaint as to this cause of action was properly denied. When the cause was submitted to the jury, the court charged that
This brings ns to the question whether the second cause, of action stated in the complaint is a good cause of action which the plaintiff can maintain. The action is for damages suffered by a living person from maligning the memory of a deceased relative. No authority for the maintenance of such an action is to be found. As stated by the counsel for the respondent, the lack of precedent is not necessarily conclusive that such an action cannot be sustained, but certainly it militates strongly against the proposition. I think, too, that an analysis of the character of an action for slander will show that on principle no such action as the present one can he supported.
Hr. Cooley says of slander and libel (Cooley on Torts, *193): “ In a legal sense, there is no wrong until the defamatory charge or representation is given to the world. This is done when it is put before one or more third persons; it is then said to be published. To say to a man’s face any evil thing concerning him is no defamation; for though" it may be annoying, aggravating and possibly injurious to him in its effect upon his mind and indirectly upon his business, still there is as yet no publication, and consequently nothing to affect the party’s reputation. The reputation is not assailed and cannot presumably be injured when the false charge is made to the party himself. If the party who is thus falsely accused repeats it to others by way of complaint or otherwise, it may then become public, but it is still no slander because the publication is not made by the defamer.”
It will be thus seen that the action of slander is not to redress or
Nor are we wholly wanting in authority on this subject. It is asserted in Newell on Defamation (p. 369): “ The fact that an infant has been defamed gives his parents no right of action, unless in some very exceptional case it deprives the parent of services which the infant formerly rendered, in which case an action on the case may lie for the special damage thus wrongfully inflicted, provided it be the natural and probable consequence of the defendant’s words.” (To the same effect see Odgers
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
AH concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.
Third edition, page 435.— [Rep.