Rowe v. Richards

• Decision Date: 27 March 1915
• Docket Number: 3520. [d]
• Citation: 151 N.W. 1001,35 S.D. 201
• Parties: ROWE v. RICHARDS et al.
• Court: South Dakota Supreme Court

151 N.W. 1001

35 S.D. 201

ROWE v. RICHARDS et al.

No. 3520. ^[d]

Supreme Court of South Dakota

March 27, 1915

Appeal from Circuit Court, Codington County; C. G. Sherwood, Judge.

Action by Jessie Rowe against O. H. Richards and others. From an order sustaining a demurrer to the answer, defendants appeal. Affirmed.

See also, 32 S.D. 66, 142 N.W. 664.

Smith and Gates, JJ., dissenting.

J. G McFarland and McFarland & Johnson, all of Watertown, for appellants.

Sherin & Sherin, of Watertown, for respondent.

WHITING J.

Plaintiff the widow of one Wm. D. Rowe and the administratrix of his estate, brought this action, under the provisions of chapter 301, Laws 1909, and sought to recover damages which she and her child, as widow and surviving child, suffered through the death of the husband and father, which death was alleged to have been occasioned by the negligent acts of defendants. Defendants alleged that the deceased, after receiving the injury from which he afterwards died, settled for such injury with one of the defendants and executed a full release of all damages occasioned by the alleged negligent acts. This allegation of the answer was demurred to; the demurrer was sustained; and it is from the order sustaining same that this appeal was taken. The sole question presented to us is: Does such settlement with, and release by, the deceased bar the right to bring this action?

This cause has been before us upon a former appeal; our opinion upon the questions then raised being found in Rowe v. Richards, 32 S.D. 66, 142 N.W. 664. In such opinion will be found the following statement without the present italicizing:

"While not necessary to a decision in this case, in order to prevent confusion in the future relative to the cause of action growing out of injuries to the person and the cause of action based upon death by negligence, it might be well to state that these two causes of action do not conflict with each other, nor do they merge upon the death of the injured parties; neither is the prosecution or satisfaction of either a bar to the prosecution and recovery on the other."

Appellants contend that, owing to the fact that it was unnecessary for this court to make the above statement and adopt the rule therein announced in order to determine the questions then before us, what was so stated did not become the law of this case, and they urge upon us a further consideration of the question now presented. We welcome this opportunity of giving to this question that full consideration and discussion which its importance demands, not, however, conceding that it did not receive a very full and careful consideration at the time this cause was before us upon the former appeal.

Chapter 301, Laws 1909, is almost identical in language with statutes to be found in most of the states, which statutes are commonly designated as Lord Campbell Acts, in recognition of the fact that they are all copied more or less closely after the original English statute known as the Lord Campbell Act. Our statute, so far as material to our present discussion, is as follows:

"Section 1. 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 corporation which, or the person who, would have been liable, if death had not ensued, *** shall be liable to an action for damages, notwithstanding the death of the person injured. ***

Sec. 3. Every such action shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars ($10,000.00), as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought."

Appellants quote from the notes found in 27 L. R. A. (N. S.) 176, in support of the claim that their contention is "supported *** by all the cases that we have been able to find, where the precise question was raised under a statute similar to our chapter 301." It must be acknowledged that a large number, and perhaps a majority, of the cases wherein this precise question was under consideration, have held in accord with appellants' view, but to so acknowledge comes far short of conceding that the weight of authority supports such view-one holding, backed by reasoning that is cogent, may be sufficient to outweigh any number of opinions wherein the argument, even though forcible, lacks that convincing power that forces conviction. To our minds, in every case wherein the court, construing a statute similar to ours, has held that an injured party could release the wrongdoer from any liability for damages that might result to his next of kin from his death, the reasoning of the court, so far at least as it bore upon this particular question, lacks both in cogency and logic. It will be our endeavor herein, not to take up each case so holding and point out wherein the reasoning is open to criticism, but, starting as a premise from one proposition upon which the vast majority of the courts and law writers are agreed, to demonstrate, not only the correctness of such premise, but, through a course of reasoning which it seems to us possesses at least the elements of cogency, to demonstrate the correctness of the statement quoted from our former opinion.

Preliminary to such discussion, and to throw some light upon the intent of the legislative bodies when passing these statutes, it may be of interest to inquire into the conditions that gave rise to such statutes. Why was it found necessary, either in this country or England, to enact any statute such as the one before us? It was because of the fact that during the evolution of that great and, in most respects, grand body of established law evolved by the early jurists of these countries, such jurists were obsessed with the idea that a money value could not be placed upon human life; and it followed that, inasmuch as there can be no legal injury where there is no recognizable damage therefor, the courts held, as stated by Lord Ellenborough in Baker v. Bolton, 1 Comp. 493: "In a civil court the death of a human being cannot be complained of as an injury." While it would be the limit of absurdity to say that any person could have a right of action for his own death, yet it was just as absurd to say that damages flowing from an injury which a wife or child may suffer through the loss of the husband's or father's support was incapable of proof in a court of justice merely because such loss of support resulted from the death of such husband or father. As is well said in Cooley on Torts, 26:

"It is remarkable that the common law *** should not have allowed the damages suffered by others from an unlawful killing to be recovered. The interest which husband and wife possess in each other's life must usually have a pecuniary value which would be estimated for many purposes at a large sum in dealing with others. *** Why should not the money value of his life, when it is taken away by unlawful act or negligence, be a right of action in the hands of his representatives?"

With the evolution of modern industry, resulting as it did in frequent deaths from negligence, the injustice of the rule of the common law became impressed upon the leaders of thought, and, from a realization of its injustice to a recognition of the utter unsoundness of the reasons urged in support thereof was but a short and natural step. The thinking mind could not help but recognize that the then established rule presented-

"a glaring absurdity in allowing a husband and father, if injured, but not killed, a right of action for the recovery of the damages thus sustained, and denying to his widow and children any compensation for the damages inflicted upon them, should the injury be greater and result in his death." Maney v. C., B. & Q. R. R. Co., 49 Ill.App. 105.

In discussing this situation, the court, in Van Amburg v. Vicksburg, etc., R. R. Co., 37 La. Ann. 650, 55 Am. Rep. 517, well said:

"Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than the Roman Digest, reproduced therein, and echoed by the courts of all countries from then till now, the singular spectacle has been witnessed of courts sanctioning damages for shortlived pains, and refusing them for a life-long sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort, and even the necessary stays of life. Legislation has at last come to the relief of future sufferers."

In speaking of such legislation, the court, in Maney v. Railway, supra, said:

"The enactment of the statute under consideration established the doctrine that the wife and next of kin and each of them had a property right and financial interest in the life of the husband and relative. Prior to its enactment this property or financial interest was not recognized by the law, and no award of compensation for its loss was permitted. Thus a new right of action was created in favor of persons who before had neither right, cause of action, or remedy. If we are right thus far, the wife and children of Daniel Maney, by the operation and effect of the statute, had a financial property interest in the

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