Hyatt v. Adams

• Decision Date: 22 October 1867
• Citation: 16 Mich. 180
• Court: Michigan Supreme Court
• Parties: Loftus Hyatt v. Aaron H. Adams

16 Mich. 180

Loftus Hyatt v. Aaron H. Adams

Supreme Court of Michigan

October 22, 1867

April 6, 1867; April 9, 1867, Heard [Syllabus Material] [Syllabus Material]

Error to St. Joseph circuit.

This was an action on the case to recover damages sustained by plaintiff by reason of malpractice and gross negligence of defendant in the exercise of his profession as a surgeon while in attendance upon plaintiff's wife; and by reason of which she died.

The declaration alleged the loss of service, and the comfort and society of plaintiff's wife, his mental suffering, and the expenses attending her necessary care.

The alleged errors are stated in the opinion.

Judgment was rendered for the plaintiff below.

Judgment reversed, with costs, and a new trial awarded.

Riley & Shipman, for plaintiff in error:

1. The court erred in admitting the declarations of Lucinda Adams, during and after the operation: 1 Greenl. Ev., § 102; 6 East, 188; 8 Watts 355; 7 Cush. 581; 7 B. and Ald., 90; 8 Bing. 376.

2. Although a husband may bring an action jointly with his wife for an injury to her (if it does not result in her death), or if he is deprived of her company and assistance, he may also bring a separate action; yet the damages is a question of law as well as of fact in all such cases: 2 Black. Com., 140. In all such cases the husband will be confined to his actual damages (5 T. R., 359; 2 Greenl. Ev., § 253; 2 Hilliard on Torts, 586; 32 Me. 586; 35 Id. 89; 1 Gill. (Ill.), 46; 20 Wend. 210; 3 Comst. 489; 2 Kern. 273; 4 Id. 310; 21 Conn. 557), and for the reason that the wife would have had a right of action if she had lived, and her representatives still have under our statute: 2 Comp. L., ch 151; 24 Wend. 420; 4 Denio 461; 15 N. Y., 419; 5 T. R., 359.

3. In a civil court the death of a human being can not be complained of as an injury: 1 Campb. 493; 1 Cush. 475; 1 Hill. on Torts, 83, and n. a; 4 Allen 55; 6 Louisiana 495; 14 B. Monr., 204; 1 Handy 481; 25 Conn. 265.

The plaintiff must be confined to the mere loss of service.

Defendant is liable, if at all, to a suit from the representatives of the deceased, for the benefit of the next of kin: 2 Comp. L., chap. 151.

This act is the same, in effect, as the 9th and 10th Victoria, called Lord Campbell's act, which has been adopted in many of the states. In such an action the real damages for the injury may come up: Carey and Wife v. Berkshire R. R. Co., cited above; Bramberger v. Cleis, L. Reg., Aug., 1865; 15 N. Y., 423.

H. F. Severens, for defendant in error:

No question is, or can be raised, as to the right of the plaintiff to recover for the loss of service, comfort and society of the wife, during the time she lived after the operation, if that loss resulted from the defendant's malpractice, and the declaration is carefully limited to the results occurring during her life time.

That the husband has a legal interest in the wife's services and society can not be doubted.

The employment of the defendant to take the care and management of the plaintiff's wife, and to remove the tumor, created a duty to the plaintiff on the part of the defendant, to bring and apply a reasonable degree of skill, and for his failure to do so, and the resulting injury, he is legally responsible to his employer.

The principle rests upon solid grounds of reason and of law.

For the damages claimed in the declaration, the husband must sue alone. This is the rule of the common law: 1 Chit. on Pl., 73; 2 Id. 642, '3, '4, and notes, 865; 18 Johns. 443; 12 How. Pr., 322; Ware, 69; 14 Ind. 595.

Assuming that at common law the death of a human being can not be made the ground of legal action, it is to be observed that the cases go no further than to hold that when the death immediately follows the injury, no action can be maintained. Where an interval happens between the injury and the death, the party may recover: 1 Campb. 493; 28 Barb. 9; 1 Cush. 475.

Let us now proceed to the examination of the particular questions arising upon the record.

1. It is assigned as error that the court admitted that portion of the evidence of Aaron H. Adams, which detailed the exclamations and expressions of suffering of his wife after the operation.

It was material for the jury to know the results of the operation, and the effects produced by it, as shown by the subsequent condition of the patient. The exclamations of pain and complaints of suffering of a person whose condition is the subject of inquiry, are admissible as original and competent evidence of the fact to be proved: 1 Greenl. on Ev., § 102; 1 Phill. on Ev. (C. H. and Edw. ed.), 182; 28 N. Y., 345; 32 Id. 597; 41 N. H., 135; 32 Vt. 591; 7 Cush. 581; 15 B. Mon., 236; 26 Ga. 171; 30 Ala. 562; 33 Id. 529.

The only exception is, that what is merely narrative of past events, is not admissible except perhaps when made to a medical adviser for the purpose of prescription: Bacon v. Charlton, supra; Allen v. Van Cleave, supra.

2. Gross negligence, or a failure to bring and use a reasonable degree of skill in the exercise of defendant's profession, would create a liability, and the damages must necessarily be determined by the jury in view of all the circumstances of the case: 5 Denio 213; 5 N. Y., 422; 6 Id. 233; 33 Id. 52; 20 Barb. 343; 27 Id. 512; 31 Id. 171; 2 Kern. 313; 3 Seld. 266; 4 Id. 37; 43 N. H., 580; 11 Wis. 160; 6 Clarke Ia., 191; 9 Ind. 528; 1 N. J., 597; 19 Ohio 337.

3. To entitle the plaintiff to recover for his mental agony during the three days prior to his wife's death, he need not show that the injury was willful. Irrespective of exemplary or punitory damages, the plaintiff was entitled to recover for his mental suffering under the most restricted rule of damages to be found in the books, provided the injury, in the language of the court, "was the result of the defendant's want of ordinary average care and skill:" 1 Campb. 493; 3 Esp. 19; Sedg. on Dam., 653; 1 Cush. 451; 9 Allen. 478; 13 Mich. 63.

The plaintiff was entitled to damages: Sedg. on Dam., 38 (marg. p.); 13 Ia. 128; 4 Greene Ia., 555; 27 Conn. 293; 13 Cal. 599; 10 N. H., 130; 36 Id. 9; 31 Miss. 156; 36 Id. 660; 22 Conn. 290; 29 Id. 496; 3 Met. (Ky.), 311.

The failure to exercise good faith, gross negligence, falling short of positive willfulness, is equally a ground for exemplary damages as willfulness. In addition to the above authorities, see 11 Mich. 542.

Christiancy, J. Martin, Ch. J. and Cooley, J., Campbell, J. concurred.

OPINION

Christiancy J.:

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 was produced by malpractice--the want of proper skill and care 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.

It is admitted on all hands, and cannot be denied, that, at common law, no civil action could be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for any damages suffered by any person in consequence of such death: Carey v. Berkshire R. R. Co., 1 Cush. 475; Kearney v. R. R. Co., 9 Id. 109; Hollenbeck v. R. R. Co., Id., 480; Whitford v. Panama R. R. Co., 23 N.Y. 465; Dickins v. R. R. Co., Id., 158; Ohio & M. R. R. Co. v. Tindall, 13 Ind. 366; Eden v. L. & T. R. R. Co., 53 Ky. 204, 14 B. Mon. 204; Green v. Hudson R. R. Co., 28 Barb. 9.

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. Butcher, Yelv., 89; Brownlow, 205; Cooper v. Witham and Wife, Sid., 375; 1 Levinz 247.

But this reason...