Grosso v. Delaware, L. & W. R. Co.

• Decision Date: 27 February 1888
• Citation: 50 N.J.L. 317,13 A. 233
• Parties: GROSSO v. DELAWARE, L. & W. R. Co.
• Court: New Jersey Supreme Court

13 A. 233

50 N.J.L. 317

GROSSO

v. DELAWARE, L. & W. R. Co.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

Error to circuit court, Essex county; before Justice DEPUE.

Action by Guiseppe Grosso against the Delaware, Lackawanna & Western Railroad Company. A demurrer to the declaration having been sustained, the plaintiff brought error.

Argued at November term, 1887, before the Chief Justice and DIXON, REED, and MAGIE, JJ.

Mr. Trimble, for plaintiff in error. Bedle, Muirheid & McGee, for defendant in error.

MAGIE, J. The declaration demurred to charged the defendant company with the immediate killing of plaintiff's wife by the negligence of its employes. It sought to recover damages for the loss of her society and assistance in plaintiff's domestic affairs, and for money laid out by him in burying her. The case thus presented does not come with the provisions of the statute of March 3, 1848, (Revision, 294,) or any other statute. It is of novel impression in this state, and the demurrer raises the question whether, apart from the authority conferred by statute, an action will lie to recover damages for the killing of a human being. In the very ingenious argument submitted in behalf of the plaintiff in error, it seems to be admitted that the current of English authority indicates that such an action could not be brought at common law. In 1607 it was held that a husband could not recover for the injury he sustained by the death of his wife occasioned by the battery of defendant. Higgins v. Butcher, Yel. 89. In deciding the case, TANFIELD, J., expressed this opinion: "If a man beat the servant of S. so that he dies of that battery, the master shall not have an action for the battery and loss of service, because, the servant dying of the extremity of the battery, it is now become an offense to the crown, being converted into a felony, and that drowns the particular offense and private wrong offered to the master before and his action is thereby lost." No trace of a case involving the right to recover for the loss of services occasioned by the killing of a wife or servant can be found thereafter until 1808. Then, in an action tried before Lord ELLENBOROUGH, a husband sought to recover damages for injuries inflicted on his wife by the negligent overturning of a stage-coach, and which eventually produced her death. That eminent judge directed the jury to limit the damages to those the husband had suffered during the life of the wife, giving, as the reason, that "in a civil court the death of a human being cannot be complained of as an injury." Baker v. Bolton, 1 Camp. 493. No further opportunity to adjudicate upon the question seems to have been afforded until 1872, when an action by a father, for loss of the services of a daughter and servant, occasioned by her death caused by the negligence of a servant of the defendant, came before the court of exchequer on demurrer to pleas, one of which set up that the death of the daughter was the immediate and instantaneous result of the negligence. The validity of that plea was sustained as affording a complete answer to the father's claim. Osborn v. Gillett, L. R. 8 Exch. 88. This course of decision cannot, perhaps, be said to have been promulgated without some protest. Thus the learned reporter of Baker v. Bolton appends to the report this query: "If the wife be killed on the spot, is this to be considered damnum absque injuria?" In Osborn v. Gillett, the result was reached by the concurrence of KELLY, C. B., and PIGOTT, B., against the vigorous dissent of the then Baron BRAMWELL. Notwithstanding such evidences of some doubt, the fact that the common law has been construed in England from the earliest times to reject an action for loss of services occasioned by the death of the servant appears, not only from these adjudged cases, but also from the absence of precedents for such actions, (the opportunity for which must have frequently occurred,) and of any doctrine of text writers or commentators to the contrary. There also appears a parliamentary declaration of what was the common-law rule, which seems to me must be decisive. It occurs in a recital of the preamble of Lord Campbell's act of 9 & 10 Vict. c. 93, (1846,) which declares that "no action is now maintainable against a person who by his wrongful acts may have caused the death of another person." There is nothing to justify any restriction of this general expression of what the common law was, because the act then proceeds to give an action in favor, among others, of a husband for the death of his wife, and of a parent for the death of his child, although such death had been caused under circumstances which would amount in law to felony.

Counsel, therefore, properly admitting this rule to have existed at common law, strenuously contend that it has never been and ought not to be adopted here. His argument is that this doctrine depended upon the notion that every homicide was felony, and occasioned the forfeiture of the felon's goods; and since his property was to go to the crown, and his body to the gallows, an action for a private injury was useless and absurd; but that in this country, where the law of forfeiture has never been adopted, the rule is inapplicable under the maxim, cessante ratione, cessat ipsa lex. But it is obvious that the reason counsel assigns for the rule is not that afforded by the cases. In Higgins v. Butcher it is said, not that the private action is useless, but that the private wrong is merged or drowned in the public wrong. In Baker v. Bolton the case was not necessarily one of felony, and Lord ELLENBOROUGH'S ruling opposed a barrier to any civil action for a death, however caused. In Osborn v. Gillett there was nothing to show the killing to have been felonious, and all the judges treat the case as not involving a felony. So the recital of Lord Campbell's act declared that no action lay against any person who by his wrongful (not necessarily felonious) acts had caused the death of another. The rule having been applied to cases not felonious, we cannot accept the reason attributed by counsel as the ground of the rule. Many reasons have been suggested for the rule. It has been said that it is inconsistent with the policy of the law to permit the value of human life to become the subject of judicial computation, (Worley v. Railroad Co., 1 Handy, 481;) that upon the principle which would allow an action to those who have been deprived of the services of deceased, an action would lie in favor of those entitled to the protection or interested in the life of deceased, as dependents or even creditors, (Insurance Co. v. Railroad Co., 25 Conn. 265;) that there is a national and universal repugnance among enlightened nations to setting a price on human life, (Hyatt v. Adams, 16 Mich. 180;) and, which is perhaps as satisfactory as any, that the right to such services as are under discussion ceases at the instant of death, so that the husband...