The Consolidated Traction Co. v. Hone

• Citation: The Consolidated Traction Co. v. Hone, 38 A. 759, 60 N.J.L. 444 (N.J. 1897)
• Decision Date: 15 June 1897
• Court: New Jersey Supreme Court
• Parties: THE CONSOLIDATED TRACTION COMPANY, PLAINTIFF IN ERROR, v. HENRY HONE, ADMINISTRATOR OF EDWARD HONE, DECEASED, DEFENDANT IN ERROR

38 A. 759

60 N.J.L. 444

CONSOLIDATED TRACTION CO.

v. HONE.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1897.

(Syllabus by the Court.)

Error to supreme court.

Action by Henry Hone, administrator of the estate of Edward Hone, deceased, against the Consolidated Traction Company. There was a judgment in favor of plaintiff, which was affirmed by the supreme court (35 Atl. 899), and defendant brings error. Reversed.

Depue & Parker, for plaintiff in error.

Thos. F. Noonan, for defendant in error.

VAN SYCKEL, J. This suit was brought, under the statute, by Henry Hone, the father of Edward Hone, an infant of the age of four years and seven months, to recover the damages with reference to the pecuniary injury resulting to the plaintiff as the next of kin from the death of his minor child, which was caused, as is alleged, by the negligence of the traction company. The statute upon which this suit is based provides: First. "That whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action of damages notwithstanding the death of the person injured," etc. The second section provides that the suit shall be brought by the personal representative of the deceased for the exclusive benefit of the widow and next of kin, and that the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person. The father, who instituted the suit below, is not only the personal representative, but is also the sole next of kin of the deceased infant.

It was insisted on behalf of the traction company in the trial court—First, that the traction company could defeat the action if it could show that the death in question was in part the result of the negligent conduct of the sole next of kin, although such negligence is not to be imputed to the infant; second, that the father could not recover in such suit for the funeral expenses of his deceased son, which were paid by him. The trial court decided both these questions adversely to the traction company, and the judgment of the trial court was affirmed by the supreme court. The case is before us by writ of error to review the judgment of the supreme court. In regard to the first question, this court is equally divided, and therefore no opinion is expressed. The second question will be the only subject for discussion.

By the common law, no action will lie for an injury caused by the death of a human being. Grosso v. Railroad Co., 50 N. J. Law, 317, 13 Atl. 233; Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389. This action being the creature of the statute, such damages only can be assessed as are clearly within the contemplation of the positive law. Lord Campbell's act (9 & 10 Vict. c. 93) provides for...