SECTION CHAPTER CLXXXII. STATE OF THE LAW PREVIOUS TO LORD CAMPBell's act. SECTION 6976. Ancient Saxon custom-Were- 6980. Reasons of the common-law §6976. Ancient Saxon Custom-Weregild.-The principle that requires compensation for the death of a freeman did not find its first expression in the modern statutes authorizing the action for death by wrongful act. Among our Saxon ancestors, many hundred years ago, before the introduction of Christianity in the island of Great Britain, the custom had obtained of paying for life taken. "The weregild (wergildus) was the price of homicide, paid for killing a 'man; the pretium redemptionis of the offender, as the werelada was when the price was not paid, but the accused denied his guilt and purged himself by the oaths of compurgators. The notion of compensation ran though the whole criminal law of the Anglo-Saxons, who allowed a recompense for every kind of crime. Every man's life had its value, called a were, or capitis estimatio. This was various at various times. In the time of King Athelstan, a law was made to settle the were of every order of persons in the State. The king was rated at 30,000 thrymsæ; a prince or earl at 15,000, an earlderman (supposed to be the origin of our word "alderman") at 8,000, a thane at 2,000, a common person at 267 thrymsa,-the thrymsa (Saxon, thrim, three) being a piece of money valued at three shillings, or, according to some, the one-third part of a shilling. When a person was killed, the slayer was to make compensation to the relatives of the deceased, according to such valuations. In the case of the king, half of the were went to his relatives and half to his people. If the deceased were a stranger, or had no relatives, the were was divided,-half to go to the king, and half to the most intimate companion of the deceased."1 § 6977. Deodands.-Formerly, at common law, in case of the death of any one by accident, forfeitures were imposed, called deodands. Lord Coke, in defining them, says: "Deodands-when any movable thing inanimate, or beast animate, do move to or cause the untimely death of any reasonable creature by mischance, in any county of the realm (and not upon the sea, or upon any salt water), without the will, offense, or fault of himself, or of any person." But no deodand accrued in the case of felonious killing. Just before the enactment of Lord Campbell's Act a statute was passed abolishing deodands." § 6978. The Common-Law Rule. The preamble of Lord Campbell's Act, which was "An act for the purpose of compensating fami 6 1 Wise v. Teerpenning (N. Y.), 8 N. Y. Leg. Obs. 153, 156. See also, Pennsylvania &c. R. Co. v. McClos key, 23 Pa. St. 526, 529. 23 Coke's Inst., ch. 9. 3 See 2 Reeve's Hist. Eng. Law (3d ed.) 13. Regina v. Polwart, 1 Q. B. 818. 9 & 10 Vict., ch. 62. 6 9 & 10 Vict., ch. 93. lies of persons killed by accidents," recites that "no action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and," it adds, "it is oftentimes right and expedient that the wrong-doer in such cases shall be answerable in damages for the injury so caused by him." Thus the British Parliament expressly recognized what has time and again been declared by the courts,-that at common law no right of action existed whereby any damages could be obtained for the death of a human being. In Hawaii the common law was 'Kramer v. San Francisco R. Co., 25 Cal. 434; Connecticut &c. Ins. Co. Y. New York &c. R. Co., 25 Conn. 265; Georgia R. Co. v. Wynn, 42 Ga. 331; Selma &c. R. Co. v. Lacy, 49 Ga. 106; Western &c. R. Co. v. Strong, 52 Ga. 461; Chicago &c. R. Co. v. Schroeder, 18 Ill. App. 328; Indianapolis &c. R. Co. v. Davis, 10 Ind. 398; Long v. Morrison, 14 Ind. 595; Peru &c. R. Co. v. Bradshaw, 6 Ind. 146; Donaldson v. Mississippi &c. R. Co., 18 Iowa 280; Major v. Burlington &c. R. Co., 115 Iowa 309; 8. c. 88 N. W. Rep. 815; Eden v. Lexington &c. R. Co., 14 B. Mon. (Ky.) 204; Eureka v. Merrifield, 53 Kan. 794; s. c. 37 Pac. Rep. 113; O'Donoghue v. Akin, 2 Duv. (Ky.) 478; Hubgh v. New Orleans &c. R. Co., 6 La. An. 495; Lyons v. Woodward, 49 Me. 29; Nickerson v. Harriman, 38 Me. 277; State v. Grand Trunk R. Co., 58 Me. 176; Carey v. Berkshire R. Co., 1 Cush. (Mass.) 475; Hollenbeck v. Berkshire R. Co., 9 Cush. (Mass.) 478; Kearney v. Boston &c. R. Co., 9 Cush. (Mass.) 108; Mann v. Boston &c. R. Co., 9 Cush. (Mass.) 108; Palfrey v. Portland &c. R. Co., 4 Allen (Mass.) 55; Richardson v. New York &c. R. Co., 98 Mass. 85; Skinner v. Housatonic R. Co., 1 Cush. (Mass.) 475; Hyatt V. Adams, 16 Mich. 180; White v. Maxcy, 64 Mo. 552, 558; Wyatt v. Williams, 43 N. H. 102; Grosso v. Delaware &c. R. Co., 50 N. J. L. 317; 8. c. 13 Atl. Rep. 233; Telfer v. Northern R. Co., 30 N. J. L. 188, 189; Beach v. Bay State &c. Co., 30 Barb. (N. Y.) 433; Crowley v. Panama R. Co., 30 Barb. (N. Y.) 99; Green v. Hudson River R. Co., 28 Barb. (N. Y.) 9; Quin v. Moore, 15 N. Y. 432; Safford v. Drew, 3 Duer (N. Y.) 627; Stallknecht v. Pennsylvania R. Co., 53 How. Pr. (N. Y.) 305; Whitford v. Panama R. Co., 23 N. Y. 465; Baltimore &c. R. Co. v. Hottman, 25 Ohio C. C. 140; Campbell v. Rogers, 2 Handy (Ohio) 110; Woodward v. Michigan &c. R. Co., 10 Ohio St. 121, 123; Worley v. Cincinnati &c. R. Co., 1 Handy (Ohio) 481; Pennsylvania R. Co. v. Adams, 55 Pa. St. 499; Hendrick v. Walton, 69 Tex. 192; s. c. 6 S. W. Rep. 749; Gulf &c. R. Co. v. Beall, 91 Tex. 310; s. c. 41 L. R. A. 807; 42 S. W. Rep. 1054; Needham v. Grand Trunk R. Co., 38 Vt. 294, 301; Insurance Co. v. Brame, 95 U. S. 754; Sullivan v. Union Pac. R. Co., 1 McCrary (U. S.) 301; Thomas v. Union Pac. R. Co., 101 U. S. 71; Drew v. Milwaukee &c. R. Co. (Minn.), 5 Chic. Leg. N. 314; Baker v. Bolton, 1 Camp. 493; Cooper v. Witham, 1 Lev. 247; Higgins v. Butcher, Yelv. 89; s. c. 1 Brownl. 205; Osborn v. Gillett, L. R. 8 Exch. 88; s. c. 42 L. J. (Exch.) 53; Smith v. Sykes, Freem. 224. But see Sullivan v. Union Pac. R. Co., 3 Dill. (U. S.) 334, where Dillon, J., in a very ably reasoned opinion and note, reviews the authorities on this point, and comes to the conclusion that the right of action did exist at common law. See also the dissenting opinion of Bramwell, B., in Osborn v. Gillett, L. R. 8 Exch. 88; s. c. 42 L. J. (Exch.) 53; Cross v. Guthery, 2 Root (Conn.) 90: Shields v. Yonge, 15 Ga. 349; James v. Christy, 18 Mo. 162; Ford v. Monroe, 20 Wend. (N. Y.) 210; Lynch v. Davis, 12 How. Pr. (N. Y.) 323; McGovern v. New York &c. R. Co., 67 N. Y. 417; Plummer v. Webb, Ware (U. S.) 75; Cutting v. Seabury, 1 Sprague (U. S.) 522. It is not doubted that an action might have been maintained by a husband or father for the damage sustained by reason of the loss of service of a wife or child, caused by injuries which eventually resulted in death, these damages being confined to the loss sustained during the life of the adopted soon after the Islands accepted Christianity, but the Supreme Court at an early date, being authorized thereto by the laws of the Kingdom, expressly rejected as a part of the common law of the Islands the rule of the English common law that a civil action could not be maintained to recover damages for wrongfully causing the death of a person, and sustained the right of a widow to sue for the wrongful death of her husband; and the rule so adopted has never since been changed by statute or decision. § 6979. Cases Announcing the Common-Law Rule.-The earliest reported case upon the subject under consideration is Higgins v. Butcher, decided A. D. 1607, in the fourth year of the reign of James I, where it appeared that the plaintiff's wife died of an assault and battery upon her by the defendant. It was held that the husband could not recover. The views of the court are thus expressed: "If a man beat the servant of J. S. so that he dies of that battery, the master shall not have an action against the other 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." The first reported case in the United States was Cross v. Guthery,10 decided A. D. 1794, in Connecticut, in which damages were allowed a husband for malpractice of a surgeon upon his wife, resulting in her death. The next case in England was the celebrated case of Baker v. Bolton," decided at Nisi Prius by Lord Ellenborough, in 1808. The plaintiff and his wife were upset while travelling on a stage-coach of the defendant, and both were injured, the wife dying about a month afterward. The plaintiff sought to recover damages in respect of the loss of the wife's services, as well as for his own injuries. Lord Ellenborough told the jury "they could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife's society and the distress of mind he had suffered on her account from the time of the accident till the moment of her dissolution." He said: "In a civil court, the death of a human being cannot be deceased: Baker v. Bolton, 1 Camp. 493; Hyatt v. Adams, 16 Mich. 180; Sullivan v. Union Pac. R. Co., 3 Dill. (U. S.) 334; Lynch v. Davis, 12 How Pr. (N. Y.) 323. An action will lie for damages sustained by the personal estate of the deceased, and for the medical expenses, by reason of injuries sustained by him, although he afterward dies; and the administrator of his estate may 11 complained of as an injury; and in this case, the damages as to the plaintiff's wife must stop with the period of her existence." While the reason given in the case of Higgins v. Butcher12-that is, that where the private wrong amounts to a felony it is merged in the public offense—has been generally held in this country to be inapplicable to our civil polity, and while the case of Baker v. Bolton13 was decided at too late a period to be binding upon the courts of this country as a part of the common law, yet the rule as there laid down has been generally followed. §6980. Reasons of the Common-Law Rule.-Various reasons have been advanced by judges and text-writers for the doctrine laid down. by Lord Ellenborough in Baker v. Bolton.14 He did not limit it to felonies, but extended it to all deaths. In the case of felonies, the reason may well have been founded in the law by which all property of the felon was forfeited to the Crown. This left nothing to satisfy the claims of private justice, and it would have been useless to maintain an action which could afford no redress. It may be that the reason of the extension of the rule beyond that which appears in Higgins v. Butchers can be accounted for in such a way. "It may be that by the ancient common law, no action could be maintained by a father for the infringement of parental rights by the act of another, unless it was accompanied with that intent or willfulness which, if the death ensued, would make the offense manslaughter at least, that is, felony. In such state of the law, if the act had not the ingredient of an intent which might make it felony, then no action could be maintained, even if death did not ensue; and if it had that element, and death ensued, then there was a felony, and consequential forfeiture."10 A learned judge, in his opinion in a case where an action for damages was brought by a husband for the death of his wife, gives the reason as follows: "When it is said that the death of a human being cannot be made the subject of damages in a civil action, we must infer that to allow the remedy in such a case would be inconsistent with the policy of the law that will not permit the value of human life to become the subject of judicial computation. The probability of its continuance for any supposed period may furnish to the insurer a calculation of chances upon which he may speculate, but ought not to be regarded by the courts, unless connected with some fixed interest in property-as, in settling the value of an annuity, or determining the present worth of a dower estate. To extend the principle so Yelv. 89; s. c. 1 Brownl. 205. #1 Camp. 493. *1 Camp. 493. 15 Yelv. 89; s. c. 1 Brownl. 205. 16 Cutting v. Seabury, 1 Sprague (U. S.) 522, 525. |