Brown v. Chi. & N. W. Ry. Co.

• Decision Date: 21 February 1899
• Citation: 102 Wis. 137,78 N.W. 771
• Court: Wisconsin Supreme Court
• Parties: BROWN v. CHICAGO & N. W. RY. CO.

102 Wis. 137

78 N.W. 771

BROWN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 21, 1899.

On motion for rehearing. Denied.

For former opinion, see 77 N. W. 748.

MARSHALL, J.

The motion for a rehearing, made on behalf of the respondent, has received careful, tireless and patient consideration, as did the case when originally considered, notwithstanding some suggestions to the contrary made in the second argument of the distinguished counsel who made such motion. It is not considered that there was any warrant for such suggestions. They had no proper place in counsel's argument. The importance of the case furnished a sufficient excuse for the motion, and counsel's resources for legitimate argument are too well known to warrant the belief that there was any necessity of resorting to other means of enforcing their logic, even by way of emphasis. Calm, fair consideration of legal questions, while not as necessary to the proper performance of the duties of counsel as those of the court, is quite as helpful in the one case as in the other. It would be well to bear that in mind, especially in presenting motions for reargument. The situation of counsel at such a time, especially where great interests are involved, and the decision disappoints hopes and convictions born of much careful study of a subject, is well suited to test to the uttermost their power of calm consideration and courteous review of reasons and authorities judicially declared to lead to and require the decision objected to. But whether counsel stand successfully such test or not, the duty of the court to carefully and dispassionately consider, and judicially determine, the questions presented, uninfluenced by any other consideration than to discover and pronounce the law correctly, remains the same.

The suggestion of the learned counsel as to the importance of this case, and the far-reaching character of the decision rendered, is fully appreciated, and was from the start. It is also fully appreciated that the result of the decision will probably be additional labor for the court, but it is not perceived why that can by any possibility change the law. Legislative enactments are to be rigidly enforced within constitutional limitations, according to the legislative will. If courts were permitted to read them so as to minimize, to any degree, judicial labor, or to adapt them to individual notions of judges as to the best governmental policy, it would be very easy to nullify or change the written law so as to defeat the people's will and destroy the very foundation of a government by the people. So the menace of an increase of judicial labor, and the difficulties of administering the law as we have declared it to be, does not appear at all weighty in favor of changing the decision heretofore rendered.

We should say in passing that the suggested difficulties in administering the law, and danger of injustice to defendants, are largely imaginary, and will gradually disappear as we adapt ourselves to the new conditions which the revival statute creates. The trial judge can easily, by proper instructions, limit the recovery in a revived action to the loss actually caused to the deceased prior to his death; and in the action under section 4255, Rev. St., to the pecuniary loss sustained by the surviving relatives entitled to the benefits of that provision. If the two causes of action are joined, the court can readily require the jury to make separate findings as to damages. As the elements entering into each are entirely distinct, it will readily be seen that there is no more danger of a double recovery under such circumstances than in any one of the numerous cases that might be suggested where two causes of action result from a single wrong. The injustice of two recoveries for distinct grievances, suggested by the learned counsel, and by some courts that have taken the view pressed upon us, is not perceived. A little dispassionate reflection on the subject, it would seem, would prevent unqualified condemnation of the legislative wisdom, that says, if a person be wrongfully injured, the pain and suffering and expenses to him in consequence thereof shall not be lost to his estate by the circumstance of his death from the injury before receiving satisfaction for his damages, even though the damages to his survivingrelatives, to satisfy their own grievance, may be recovered.

What has been said sufficiently meets the preliminary observations and reasons given in the argument for the rehearing. We will now endeavor to take up in their order the objections to the decision, relied upon.

It will not be necessary to go over to any great length, the subjects discussed in the former opinion. As before indicated, they have all been once considered with all the deliberation and care that should characterize the work of a tribunal of last resort, whose judgments must stand as the infallible truth, there being no power under our system by which such judgments can be changed after the brief time for review allowed by the Code shall have expired.

Our attention is called to the rule stated in the opinion of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, to the effect that, though general expressions in an opinion which go beyond the case may be respected, they ought not to control the judgment in a subsequent suit. That proposition is familiar, and is not liable to be forgotten by judges who have been called upon to apply it in their daily work for a series of years. The trouble with the learned counsel's argument is that they apply the rule, as it seems, to everything in a legal opinion not a part of the final conclusion reached,--to what is judicial dictum and even to the reasons upon which the decision is based and are essentially a part of it, when that seems necessary to dispose of authorities that are clearly opposed to their contention; and again, treat mere observation by a judge in writing an opinion by way of illustration or argument, referring to collateral topics for that purpose, as a part of the deliberate judgment of the court, when, if so considered, they support counsel's contention. There are few decisions of any court but that might be successfully attacked if such a method were permissible. What is here said will be borne out, in our judgment, by what follows.

It is conceded by the learned counsel that if we were right as to what was decided in Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, the decision heretofore reached in this case rests on authority. The question there was, whether a claim for a personal injury, based on actionable negligence, is assignable. The court decided that the question turned on whether a cause of action to enforce such a claim survives the death of the original owner; that by the common law the answer must be in the negative, but under section 4253, as it now stands, making all causes of action for false imprisonment, assault and battery, or other damages to the person, survivable, all bodily injuries resulting from actionable negligence are included, and therefore the question must be answered in the affirmative. Said Mr. Justice Winslow, the statute “includes every cause of action the substantial cause of which is a bodily injury,” and the language in that regard is too plain to leave any room for rules of construction to operate. To support that, the decisions of the Massachusetts court, made under a similar statute adopted in 1842, the first act of its kind in this country, and from which our own was doubtless taken, holding the same, were cited. It needs no discussion to show that the familiar rule stated by Chief Justice Marshall, with which the learned counsel prefaced his review of Lehmann v. Farwell, has no application to it whatever. The expression, that the survival statute includes every actionable personal injury, and is too plain to that effect to require construction, was not obiter,--it was not even judicial dictum. It was the very groundwork of the opinion itself and governs this case beyond reasonable controversy, unless we are to overrule it.

It is a mistaken opinion that nothing is decided in a case except the result arrived at. All the propositions assumed by the court to be within the case, and all the questions presented and considered, and deliberately decided by the court, leading up to the final conclusion reached, are as effectually passed upon as the ultimate questions solved. Trustees v. Stocker, 42 N. J. Law, 115. The judgment is authority upon all points assumed to be within the issues which the record shows the court deliberately considered and decided in reaching it. Quackenbush v. Railroad Co., 71 Wis. 472, 37 N. W. 834;Pray v. Hegeman, 98 N. Y. 351. Nothing is obiter, strictly so called, except matters not within the questions presented,--mere statements or observations by the judge who is writing the opinion, the result of turning aside for the time to some collateral matter by way of illustration. Buchner v. Railway Co., 60 Wis. 264, 19 N. W. 56;Rohrbach v. Insurance Co., 62 N. Y. 47;Michael v. Morey, 26 Md. 239;Clark v. Thomas, 60 Tenn. 419;State v. Clarke, 3 Nev. 566;Marbury v. Madison, 1 Cranch, 137. The test of what is obiter, by means of which counsel confidently brush aside the decisions of this court on the very point at issue, and the deliberate decisions of many other courts on the same point, or on questions essentially involved, was pressed upon our attention in Buchner v. Railroad Co., supra, was there fully considered, and was rejected. A study of the opinion in that case, written by the present chief justice, is commended as the most effectual remedy for the mistaken notion, not only that a decision is not authority except upon the very point necessary to it, but that obiter is to be rejected, always, as entirely without authority. The opinion quotes the rigorous rule by which counsel test authorities fatal to their contention; then...