Southern Bell Tel. & Tel. Co. v. Cassin

• Decision Date: 09 August 1900
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. CASSIN et al.
• Court: Georgia Supreme Court

36 S.E. 881

111 Ga. 575

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. CASSIN et al.

Supreme Court of Georgia

August 9, 1900

Syllabus by the Court.

An action for the homicide of a husband or father, alleged to have been occasioned by a physical injury, is not maintainable when it appears that he, while in life voluntarily settled with the wrongdoer therefor, and discharged the latter from all liability for the damages resulting therefrom.

1. That a husband or father who, in consequence of the negligence of a telephone company, received personal injuries from which he died, had, while in life, received from the company full compensation for the tort to himself, does not defeat the statutory right of the widow or children to bring an action against the company for the homicide. Per Cobb and Lewis JJ., dissenting.

2. In the trial of such an action the plaintiff is entitled to recover the full value of the life of the deceased irrespective of any amount which may have been paid to him by the company. Per Cobb and Lewis, JJ., dissenting.

Action by G. A. Cassin and others, by next friend, against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Burton, Smith, Dorsey, Brewster & Howell, for plaintiff in error.

Arnold & Arnold and Bray & Arnold, for defendants in error.

SIMMONS C.J.

George Cassin was injured by the plaintiff in error May 6, 1892. He instituted suit, and while the action was pending the company paid him $2,500, taking a receipt stating that it was "in full settlement of my action against said company now pending in the city court of Atlanta, and also in full settlement of all and any claim for damages on my part arising out of the injury received by me on or about May 6th, 1892." More than five years after the injury, Cassin died, and his widow thereupon brought suit against the company for his homicide, alleging that his death was caused by the injury negligently inflicted by the company. She, too, died, and the suit was then continued in the name of the children. The evidence as to the cause of the death of Cassin was conflicting; one physician testifying that it was due to apoplexy, superinduced by Cassin's habit of body, and great mental distress, caused by domestic afflictions. Another physician testified that it was caused by the blow from the fall of the telephone cable. The company offered in evidence the receipt given by Cassin in settlement of the damages, and the court excluded it.

The technical rule of the common law, preventing a wife or child from recovering damages for the death of a husband or father, was a great hardship. There was a crying demand for the enactment of a law which would give a cause of action against "the person who would have been liable if death had not ensued," and in 1846 was passed Lord Campbell's act,--the first of a series of acts giving such remedy. At the present time like statutes exist in nearly all of the states of the Union, and none more liberally protect the rights of the wife and children than does that in Georgia. In many of the states, while there is no limit to the amount of damages recoverable for personal injury, there is a limit in case of death; some providing that the verdict, in case of death, shall not exceed $5,000, and some that it shall not exceed $10,000. In others, while there is no statutory limit to the amount of the verdict, the widow or children are only entitled to recover the "pecuniary value" to them of the father or husband, and in arriving at this pecuniary value the jury must consider and deduct at least what he would have spent on himself. But so liberal to the wife and children are the provisions of our law, that, when the facts show that the defendant is liable for the death of the husband or father, the jury's verdict is for the "full value of the life of the deceased, without deduction for his necessary and personal expenses,"--a provision which, "to say the least, is a harsh rule, and must be strictly construed." Smith v. Hatcher, 102 Ga. 160, 29 S.E. 163. The proposition relied on by defendants in error, if correct, exactly doubles the operation of a statute which has already gone a bowshot beyond that of any other state; for it is claimed that this act gives the widow the full value of the life of the husband, even though he in his lifetime had received from the defendant compensation for the injury inflicted, and that evidence of the release cannot be introduced, either as a bar to her recovery, or to be considered by the jury in reducing the amount of the verdict. A decision which would announce, to persons who have settled with parties injured, that the settlement, instead of being in full, was only partial; that, if death ensues as a result of the injury, they must pay again, and this time the full value of the life of the deceased,--will be justly regarded as a great hardship, and it will come to the widow and children, not as the grant of a right heretofore unjustly withheld, but as a second payment of a claim already satisfied.

Examining the decisions in England under Lord Campbell's act, and the decisions under similar statutes enacted by the various states in the Union, we find that sometimes the right of action is vested in the injured party, and survives to his personal representatives or family. Sometimes a cause of action for the death is given to the personal representatives, who sue for the benefit of his estate, or sometimes for the benefit of persons who are dependent on him. In such cases the personal representative is trustee for these beneficiaries, and not for the estate. In other cases the widow or children are given directly the right of action for the death of the husband. But these differences are all incidental. Tiff. Death Wrongf. Act, § 24. Each of these statutes had the same purpose as our own. Differing as to details, they are all intended to give the personal representatives, or the members of the family, or whomsoever the plaintiff might be, a right to recover against "the person who would have been liable if death had not ensued." In Littlewood v. Mayor, etc., 89 N.Y. 24, 42 Am.Rep. 271, the court had under consideration an act giving the personal representative a cause of action for death, and said: "The main purpose was to deprive the wrongdoer of the immunity from civil liability. The entire gist of the first section is that the wrongdoer shall be liable to an action for damages notwithstanding the death of the person injured. It does not provide that the wrongdoer shall be liable notwithstanding *** any other defense he might have had at the time of death, but merely that the death of the party injured shall not free him from liability, showing that this is the point at which the statute is aimed. ***" Most of these statutes are absolutely silent as to the effect of settlements made by the husband in his lifetime, and yet notwithstanding this silence the courts have generally held that such settlement was a bar to another suit against the same party, as the act was not intended to "give two actions for a single injury." Sawyer v. Perry (Me.) 33 A. 660. Some of these decisions had been rendered before our act of 1887, and are fairly to be presumed to have been within the knowledge of the legislature when revising the law on the subject of death by wrongful act. If that body had intended to change this well known construction as to the effect of settlement, it would have said so. Its silence is to be taken as more indicative of approving than disapproving this line of cases. For many years the court has permitted a widow, and, if no widow, the children, to recover for the homicide of the husband or father. During that period hundreds of instances have occurred in which the husband was injured, and has received compensation therefor. In the very nature of things, many of these physical injuries impaired health, and probably hastened death, and yet no suit therefor has until within recent years been brought by the widow of such person. Evidently, by the common understanding of the community, payment to the husband--accord and satisfaction between him and the defendant--was regarded as a settlement of all liability growing out of the negligent act. See Lubrano's Case (R. I.) 32 A. 207, 34 L.R.A. 797. We feel safe in saying that many adjustments have been made upon this idea which would not otherwise have been made, and that giving to the statute the effect now insisted upon would not only be a great hardship upon defendants who, relying and acting upon the heretofore generally accepted view of the law, have paid their money and bought their peace, but it would be giving to widows something which they did not expect, where a settlement had been made by the head of the family.

But it is said that no decision that a release by the husband bars a subsequent suit by or for the wife is of any value in this case, unless it was rendered by a court which holds that the survival and death acts create new and distinct causes of action. This, therefore, must be borne in mind in estimating the weight of the authorities cited. In reading them with this prominently in view, it is remarkable to note the various expressions used in the effort to define the relation which the action by or for the widow bears to the action in favor of the injured husband. Some--in fact, all--of the courts may be said to call it a "new cause of action," as in Railroad Co. v. Bass, 104 Ga 390, 30 S.E. 874. Some call it a "new, but not an independent, cause of action." Cooley, Torts, 264, speaks of it as an "enlargement" or "continuation." Some call it a "new remedy." Others hold that there is one cause of action, and, if this is not extinguished during the life of...