Salsedo v. Palmer

Decision Date14 December 1921
Docket Number59.
Citation278 F. 92
PartiesSALSEDO v. PALMER et al.
CourtU.S. Court of Appeals — Second Circuit

Mayer Circuit Judge, dissenting.

Hale Nelles & Shorr, of New York City (Walter Nelles, of New York City, of counsel), for plaintiff in error.

William Hayward, U.S. Atty., of New York City (Keith Lorenz, Asst U.S. Atty., of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This action was commenced on January 4, 1921, in the Supreme Court of the state of New York for the county of New York, by the plaintiff as administratrix of her deceased husband. The action is brought to recover damages for causing the death of the plaintiff's intestate. The complaint alleges that the defendants and each of them caused the death of the decedent by the acts set forth therein and which may be found in the margin. [1]

The plaintiff is an alien being a subject of the kingdom of Italy. The defendant A. Mitchell Palmer was, during the period of the acts herein involved, the Attorney General of the United States. He filed a petition in the United States District Court for the Southern District of New York, in which among other things he averred that the plaintiff was an alien and that he himself was a resident of the state of Pennsylvania, and asked that the case might be removed to the District Court in pursuance of the act of Congress in such case made and provided. This petition was granted, and on February 18, 1921, the cause was removed from the state court into the District Court.

Thereafter, and on February 24, 1921, the defendant Palmer demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The other defendants joined in a similar demurrer. On the same day an order was entered requiring defendants to show cause why the demurrers should not be forthwith determined and judgment entered for the plaintiff upon the pleadings; and on February 28, 1921, an order sustaining the demurrers was entered, the complaint was dismissed upon the merits, and judgment was entered for the defendants against the plaintiff upon the merits and for their costs.

This is an action brought by an administratrix to recover damages for causing the death of her decedent husband by alleged wrongful acts. Although there are some cases which maintain a contrary view, [2] it is now well established that no action lies at common law to recover damages for causing the death of a human being by the wrongful or negligent act of another. St. Louis, etc., R. Co. v. Craft, 237 U.S. 648, 35 Sup.Ct. 704, 59 L.Ed. 1160; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 Sup.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; Stewart v. Baltimore, etc., R. Co., 168 U.S. 445, 18 Sup.Ct. 105, 42 L.Ed. 537. It is a maxim of the law that 'actio personalis moritur cum persona.' The rule was most justly criticized as extremely technical and unsound in principle. It was changed by statute in England, but not until 1848, when Lord Campbell's Act was passed. The Congress by the act of June 11, 1906, made common carriers engaged in commerce between the states and between the states and foreign nations, as well as in the District of Columbia and the territories, liable for death caused to their employees resulting from negligence of such carriers. 34 L.part 1, p. 232, c. 3073. See, also, 35 L. 65, c. 149 (Comp. St. Secs. 8657-8665); 36 L. 291, c. 143 (Comp. St. Secs. 1010, 8662, 8662). And in most of the states statutes similar to Lord Campbell's Act have been passed, and it is interesting to observe that the year before Lord Campbell's Act was passed the state of New York enacted a statute giving a right of action whenever the death was caused by wrongful act, neglect, or default, and the act, neglect, or default was such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. Laws of New York 1847, vol. 2, c. 450, p. 575. And see Laws of 1849, c. 256, p. 388; Laws of 1870, vol. 1, c. 78, p. 215; Laws of 1909, vol. 1, c. 221, p. 346.

The present action is brought under section 1902 of the New York Code of Civil Procedure, the material part of which is as follows:

'The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.'

To sustain an action for death, the wrongful act, neglect, or default must have been the proximate cause of the death. Scheffer v. Washington City Midland, etc., R. Co., 105 U.S. 249, 26 L.Ed. 1070; Mella v. Northern S.S. Co., 162 F. 499; Seifter v. Brooklyn Heights R. Co., 169 N.Y. 254, 62 N.E. 349.

The maxim 'In jure non remota causa sed proxima spectatur' applies in such a case as the one now before the court. That maxim is thus paraphrased by Lord Bacon in his constantly cited gloss:

'It were infinite for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree. ' Bac. Max. reg. 1.

This is the first of Lord Bacon's maxims. Its meaning is that in ascertaining the cause of an injury in order to fix liability therefor one cannot go behind the last cause. The final cause and its immediate effect alone concern the court. Liability for result and responsibility for final cause are regarded as inseparable. If one is responsible for the proximate cause one must be responsible for the result. And it has been pointed out that the general grounds of liability for a tort are not different from those which determine criminal liability. 9 Harvard Law Review, p. 84.

Addison on Torts (8th Ed.) p. 51, declares the rule of law to be that the immediate cause, the causa proxima, of the damage, and not the remote cause, is to be looked at. 'If the wrong and the legal damage,' the writer says, 'are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not sufficiently conjoined, as cause and effect, to support an action, unless it is shown that the wrongdoer knew, or had reasonable means of knowing, that the consequences not usually resulting from his act were, by reason of some existing cause, likely to intervene so as to cause damage to another.'

In Pollock on Torts (11th Ed.) p. 29, that distinguished authority declares that in such cases liability must be founded on an act which is the immediate cause of harm or of injury to a right. He asserts that for the purpose of civil liability, those consequences, and those only, are deemed 'immediate,' 'proximate,' or 'natural and probable,' which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct.

And Judge Cooley in his great work on Torts (3d Ed.) 99, treating of the right to recover in such cases declares that it is not only necessary that damage should be suffered but the damage must be 'the legitimate sequence of the things amiss. ' He states that the maxim of the law here applicable is, that in law 'the immediate and not the remote cause of any event is regarded, and that the law always refers the injury to the proximate and not to the remote cause.'

The same eminent authority also declares that if the original act was wrongful and in the ordinary course of events would prove injurious to some other person, and does in fact result in injury through the intervention of other causes which are not wrongful, the injury is to be attributed to the wrongful cause passing by those which are innocent. But, if the original wrongful act became injurious only because of the intervention of some distinct wrongful act by another, the injury is imputed to the last wrong as the proximate cause and not to the one which was more remote. See Cooley on Torts (3d Ed.) pp. 101, 104.

The defendants claim that the intervening and wrongful act of suicide was the proximate cause of the death, and that their own acts, assuming them, as we must upon demurrer, to have been committed as alleged, are not sufficient to make them responsible for the injury which resulted, but must be regarded as too remote.

So that the question this court must determine is whether the wrongful acts which it is alleged the defendants committed, and which the demurrer admits they committed, can be regarded as the proximate cause of the death of the decedent. In determining that question it may be well to have in mind the rule laid down by the New York Court of Appeals in Laidlaw v. Sage, 158 N.Y. 73, 99, 52 N.E. 679, 688 (44 L.R.A. 216), where it is said:

'A proximate cause is one in which is involved the idea of necessity. It is one the connection between which and the effect is plain and intelligible; it is one which can be used as a term by which a proposition can be demonstrated, that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn. In other words, a remote cause is a cause the connection

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