Peake v. Baltimore & O.R. Co.

• Decision Date: 01 January 1886
• Citation: 26 F. 495
• Parties: PEAKE, Adm'r, v. BALTIMORE & O.R. CO.
• Court: U.S. District Court — Southern District of Ohio

26 F. 495

PEAKE, Adm'r, v. BALTIMORE & O.R. CO.

United States Circuit Court, S.D. Ohio.

January, 1886

Converse Booth & Keating and Outhwaite & Lynn, for plaintiff.

J. H Collins, for defendant.

HAMMOND J.

It was by the statute 4 Edw. III. c. 7, which has the force of common law with us, and through its enlarged construction by the courts, that injuries to personal property could be redressed, after the death of the owner, at the suit of the executor or administrator. See Rev. St. Ohio, Sec. 4975. That statute almost abrogated, so far as it concerned personal property, though perhaps not quite as fully as our modern statutes have done, the maxim that personal actions die with the person; but it left the maxim in all its force as to injuries to the person until quite recent times. In this condition of the law, and prior to our own modern statutes giving a remedy after death even for injuries purely personal, there was a struggle, through the various forms of action, to redress these latter injuries, notwithstanding the obnoxious maxim, by bringing some action sounding in contract rather than tort; and, on the other hand, certain actions upon contracts, but sounding in damages,-- as, for example assumpsit,-- were sought to be excluded from the common-law advantage of survival for all actions upon contracts. The modern abolition of forms of action has increased the complications of the subject; but everywhere traces of the influence of the nice discriminations of the old special pleadings can yet be found, and the distinctions between actions ex contractu and ex delicto, like those between law and equity, so inhere in the fiber of our law that it seems impossible to be rid of them. Schouler, Adm'r, Secs. 277-284; 1 Williams, Ex'rs, (4th Amer. Ed.) 664, 669, et seq.; 1 Wms.Saund. 216, note; Cooley, Torts, 262; 2 Add.Torts, 1111; Broom, Leg. Max. (7th Ed.) 904-916; Twycross v. Grant, 4 C.P.Div. 40, 45; Kirk v. Todd, 21 Ch.Div. 484, 488; Alton v. Midland Ry. Co., 19 C.B. (N.S.) 213; Bradshaw v. Lancashire R. Co., 10 C.P. 189; Blake v. Midland Ry. Co., 18 Adol.& E. (N.S.) 93.

There is in this case, since there is no relation of passenger to carrier or other contract between the parties, no element except of pure tort; unless, if necessity required, the principles of the old law might be invoked,-- as in the case of the parson, for dilapidations, mentioned in Saunders,-- to raise a contract by reason of a duty to be performed by this railroad company in so managing it that every person crossing its track should be safe from injury; this obligation or duty arising as a consideration for the franchise of operating a railroad at all. But, happily, we do not now need to resort to such niceties to save a manifest right denied by a maxim which never had any sense in it, after the law, having advanced beyond the stage which gave all a man's property to the first taken, when he was dead, allowed wills to be made and administrators to be appointed to transmit his property to the next of kin, when his debts should be paid. The early recognition of choses in action as property capable of transmission was nothing more than the acknowledgment of the survival of a right to sue; but this is not strictly comprehensible, for the reason that a cause of action has no life, and cannot die, as the maxim says it does. Therefore, discarding the fictions of which the law is sometimes fond, it may be truly said that when a man dies the law takes hold of his property and vests the subsequent ownership in whomsoever it pleases, according to its wisdom. Being dead, a man can no longer be a litigant in court, and the law therefore appoints some one to act in his stead and exercise the power he had to redress his injuries, be they what they may, with such limitations as its wisdom may impose. We now have, because of rules that have become familiar, only a faint notion of the latitude that legislation may take in giving directions as to what shall be done with a dead man's property, and how the injuries-- I mean in the broadest sense-- he has sustained may be redressed by others appointed to redress them; these two things being in the end only one,-- the distribution of his property, namely: for that compensation due him as damages for injuries sustained either to person or property, although in the hands of an adversary who denies the dead man's claim to it, is, after that controversy is settled, the amount ascertained and satisfaction made, as much tangible property distributed according to his will or according to the directions of the law in lieu of it, as any other.

Now, for a very long time,-- indeed, so long that we are apt to forget that it is all by legislative direction,-- pursuing the course of nature, and following the indications of human sentiment, the law has permitted the dead man to appoint the persons to take his property, those who are to take his place as litigants and represent him in that behalf; and, in default of a will to do that, selects those nearest to him in affection as the takers, and appoints some one to represent him in litigation. Quite uniformly, everywhere, it has recognized the claim of creditors to be first paid, and, after this, that the widow and children, and then the next of kin, should take the surplus. Nearly always the executor or administrator must sue or be sued, no matter who takes the proceeds; and the law by a fiction has treated this right of the personal representative to sue as a thing transmitted by the dead man, in the sense that, by a similar fiction, the tangible property is transmitted; but we should not allow this fiction to mislead us in construing statutes like that here. It may be that if, when the decedent died, he had a right to sue, already subsisting and accrued, there was some basis for treating this as transmitted by him to his executor or administrator; although, as a matter of fact, as the language of the statute of Edward and all subsequent statutes shows, it is rather the creation in the representative of a new right to sue. But when-- as in the case of instantaneous death, (if there be such a thing possible,) or in case of death longer delayed, where the gravamen of the action is the injury arising out of the death solely, and not out of the previous suffering-- a suit is directed by law, which the decedent previously to his death never had any right to bring, the fiction of any transmission of the cause of action appears more distinctly, and the creation of a new cause of action becomes more marked. Unimportant as this really is, it has a technical bearing which we cannot overlook in cases like this, as we shall presently see.

Again when the law in recent times took another step forward, as in Edward's reign it had done, and determined that it would abolish the absurdity of offering a premium to crush a man to death rather than crush him less severely, it departed from the original policy of first...