Soden v. Trenton & Mercer County Traction Co.

• Decision Date: 30 January 1925
• Docket Number: No. 89.,89.
• Citation: 127 A. 558
• Parties: SODEN v. TRENTON & MERCER COUNTY TRACTION CO.
• Court: New Jersey Supreme Court

127 A. 558

SODEN

v. TRENTON & MERCER COUNTY TRACTION CO.

No. 89.

Court of Errors and Appeals of New Jersey.

Jan. 30, 1925.

Appeal from Supreme Court.

Action by Albert N. Soden, executor of Garrett N. Soden, deceased, against the Trenton & Mercer County Traction Company. Judgment for defendant was affirmed by the Supreme Court (124 A. 710), and plaintiff appeals. Reversed, and venire de novo awarded.

Martin P. Devlin, of Trenton, for appellant.

Katzenbach & Hunt and George Gildea, all of Trenton, for respondent.

LLOYD, J. Albert N. Soden, as executor of the last will of Garrett N. Soden, brought suit in the Mercer county court of common pleas to recover damages for injuries sustained through the negligence of the Trenton & Mercer County Traction Company to his testator resulting in the latter's death, and for damages sustained by the death to the next of kin. At the trial counsel for the defendant moved to strike out of the complaint all damages arising previous to the death of Soden. The court permitted an amendment of the complaint so that the same should be presented in two counts; the first for moneys expended between the date of the accident and the death of the testator as damages sustained by the estate, and the second for the pecuniary loss sustained by the next of kin from the death itself. A motion was then made by defendant's counsel to strike out the first count. The court granted the motion, and to this action an exception was noted by the plaintiff. An appeal to the Supreme Court resulted in an affirmance of the judgment, and the case is here on appeal from this judgment of affirmance.

The facts of the case were that Garrett N. Soden was injured through the negligence of the defendant company on the 30th of May, 1922. These injuries resulted in his death on the 25th of November, 1922. In the interval between the date of the accident and the death sundry expenses were incurred by the deceased in the effort to effect a recovery, and certain loss of earnings was alleged to have resulted from the injuries.

It will be perceived that the question presented is whether an action may be maintained by the executor to recover the damages sustained by the deceased in his lifetime by reason of the injuries tortiously inflicted upon his person and which resulted in his death. The right to recover is rested on the act of March 17, 1855 (2 Comp. St. 1910, p. 2260), the fourth section of which enacts:

"That executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser or trespassers, and recover their damages in like manner as their testator or intestate would have had if he or she was living."

It is claimed by the respondent, however, that this act, notwithstanding its clear and explicit statement, was not intended to give a remedy for the injuries set forth in the count which was struck out in the court below, but was passed in subordination to the Death Act of March 3, 1848 (P. L. p. 151), and was absorbed in its provisions, section 1 of which reads as follows:

"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 on 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 for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."

The second section of the act provides that such action shall be brought in the name of the personal representatives of the deceased person, and the amount recovered in such action shall be for the exclusive benefit of the widow and next of kin of the deceased person, and shall be distributed to the widow and next of kin in the proportions provided in the statute of distributions; and, further, that the damages shall be awarded by the jury with reference to the pecuniary injury resulting from the death of the deceased to the widow and next of kin. Slight changes have been made in the act, but are not material for our consideration now.

At common law for any injury to the person, though never so unlawfully caused, resulting in death, no remedy was accorded to the estate of the deceased person, nor to those dependent on him. That this was the settled law of England prior to legislation on the subject is not open to question. As a preamble to Lord Campbell's act it is recited that "whereas no action at law is now maintainable against a person who by his wrongful act, neglect or default, may have caused the death of any person." To like effect was the common law of our own state. Grosso v. R. R. Co., 50 N. J. Law, 317, 13 A. 233. In the early period of the development of the common law of England no personal right of action survived to the personal representatives. Cooper v. Shore Electric Co., 63 N. J. Law, 558, 44 A. 633. In 4 Edw. 111, c. 7, then more tender of property rights than of human rights, the British Parliament sought to remedy in a measure the defect by giving to executors an action for "a trespass done to their testator, or of the goods and chattels of the testator carried away in life." By the act of 25 Edw. 111, c. 5, and the judicial interpretation of the two statutes, actions on the case and in assumpsit on simple contract were held to be accorded, but injuries to the freehold and to the person were still without redress at the hands of the personal representative. In 1846 Parliament passed the act known as the Death Act and now generally given the title of its illustrious author, Lord Campbell. It undoubtedly was the product of an enlightened public conscience that realized the inadequacy of the law to do justice in this important phase of wrongs to the person whereby, due to the growing industrial and commercial activities of the nineteenth century, human life was being more and more sacrificed and more and more dependents left penniless and without redress for the loss of those upon whom they leaned for support. This same realization in this country brought about similar change in the states and with singular promptness and unanimity.

In our own state the act of 1848 was passed, New York preceded us in 1847 (Laws 1847, c. 450), and other states followed our own. In general, the provisions of Lord Campbell's Act as to substantive right were followed (Tiffany's Death by Wrongful Act, p. 26); that of New Jersey being in almost identical language....