1 2 ecutors or other personal representatives; for the statute 4 Ed. 3, c. 7, has made no alteration in the common law in that respect; and the statute 3 & 4 Wm. IV (1833), c. 42, s. 3, only gives executors and administrators an action for torts to the personal or real estate of the party injured, and not for mere injuries to the person. 94. DEBATES IN THE PARLIAMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND. (Hansard's Parliamentary Debates, 3d series, Vol. 87, col. 1365.) 1846, July 22. On the Order of the Day being read for the House to go into Committee on the Death by Accident Compensation Bill, Sir F. Thesiger said, . . . He was desirous that the law should be improved to the utmost extent; but he wished, at the same time, that no sudden changes should be made without regard to the consequence that might result from them. . . . The House, he believed, was perfectly aware of the state of the law on this subject. When a person had received any injury arising from the carelessness or negligence of another, he was entitled to maintain an action to recover damages for that injury; and supposing the person who committed the injury was the servant of another, he was entitled then to maintain an action against the master of that servant; but if death ensued from the accident, all parties were exempted from civil responsibility; and, most unquestionably, the distinction appeared to be very inconsistent and very unreasonable; and for his own part he should be quite prepared to support any measure which would have the effect of relieving the law from the anomaly which existed in this respect. He thought there would be no difficulty in introducing a measure of that description. Many hon. Members were aware that the old common law on the subject of personal action was, that it died with the person; but the statutes had introduced a relaxation of the law in that respect; and the executor or administrator was entitled to maintain an action for any damage that had arisen to the personal property, and in many instances, by a recent statute, to the real property of the deceased. He should have no objection at all to continue and enlarge that principle, and apply it to this particular subject, and to say that the executor or administrator of a party who had received an injury that occasioned his death, should be entitled to maintain an action, precisely in the same way as the person himself would have been entitled had he lived. He saw no difficulty at all in introducing a measure of that kind. He should, in the next place, refer to the provisions of the Bill, which presented some instances of the careless and hasty way in which the Bill had been prepared. It appeared that it was to be applied not merely to cases of negligence; but that if a person, by an act of violence, should destroy the life of another, under such circumstances, when it only amounted to manslaughter, an action might be maintained by the executor or administrator. Why, he asked, should they stop short there, and say, where the act of violence only amounted to manslaughter there should be an action, but where it amounted to murder there should be no action? What possible distinction as to loss could they make between the two cases? If their objection should be, that, with regard to murder, a party would be liable to forfeiture of all his goods and chattels, and therefore incapable of paying damages, the same argument would apply to manslaughter, of forfeiture of goods and chattels on conviction. . . . He would next call the attention of the House to the clause under 13 Bla. Com. 203; 2 M. & Sel. 408. which damages were to be given. He observed that the only persons who were regarded by the provision were the next of kin; but that might be altered in Committee. And he would call their attention to another point. If an action were brought, and damages given according to the loss which a widow sustained by the death of her husband, the widow whose case was the subject of consideration (in case there were children) was to receive only one-third of the damages, and the children were to receive two-thirds of the damages; though the children were independent of the father, and though the damages were estimated on the loss of the widow. He mentioned that as an instance of the hasty and careless way in which the Bill was prepared. . . . It was proposed under this Bill, that all the damages should go to the widow and next of kin; whereas all the persons who were injured by the death of the party ought to be entitled to compensation in respect of that injury; and the damages when recovered should be assets distributable under the Statute of Distribution. . . . Viscount Sandon wished to know how it was proposed to secure to the children of a deceased person the advantages which the present Bill proposed to give them. In the event of a jury awarding compensation to them for the death of a parent, would it be made in a gross sum or in an annuity? Mr. Bouverie: In a gross sum. . . . Sir J. Graham observed, . . . that the question would arise, who was the next of kin? He might be resident in some distant part of the world; and was that next of kin, having really sustained no damage by the death of his relation, to be entitled to damages against all the proprietors of a colliery, though he had really received no damage? The principle of the measure was right; but the practical working of it, and giving effect to it, appeared to him to be surcharged with difficulty. . . . The Lord Advocate said, . . . that the question was, who the parties were that were entitled to sue and recover? . . . A person looking for damages must properly qualify himself, and he conceived that a jury would never listen to an action for damages by some distant relation. A person living abroad, totally removed from the person whose death was caused, could not, he conceived, expect the remedy. At the same time he thought, as they were going to legislate on the subject, that perhaps the expression "next of kin" was extremely indefinite; and it would not be objectionable that the particular relations whom the Legislature thought should be entitled to seek damages should be directly specified. It was only a near relation that ever should recover damages, and practically they had found no difficulty in Scotland on that subject. He might mention a railway case in which lately the widow and children had brought an action. He happened to be employed for the railway, and his advice was to compromise it, giving the children 1,000l., and the widow a large sum. The objection of the noble Lord (Lord Sandon) might easily be met, by allowing the jury to apportion the damages. . . . He thought that much might be done to improve the Bill, which was open to some serious objections at present. . . . Mr. Wakley thought the . . . House had manifested a strong disposition to legislate not only extensively but correctly on this subject. He must say, however, that the Bill was an extremely crude measure; he had scarcely ever seen a Bill more carelessly drawn; and, in his opinion, it must have been drawn by some legal gentleman who was practising as an amateur. . . . Sir G. Grey thought that the necessity for some alteration in the law had been shown. . . There was at present a gross anomaly in the law on this subject. If a man, through the gross carelessness of a railway company, met with an accident, by which he sustained serious injury, or lost a limb, he might bring an action against the company, or the parties liable in law, to recover damages for the expenses of medical attendance and the loss he might sustain from inability to attend to his profession; but if, while such action was pending, the injured man died, the proceedings were at once stopped, and his family, besides sustaining the loss of perhaps their most important member, were not only subjected to the cost of medical advice, but to the costs of the action which had been commenced. 95. STATUTES OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND. (Statutes at Large, Vol. 86.) 9 & 10 Victoria, 1846, cap. XCIII. An Act for compensating the Families of Persons killed by Accidents. 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 another Person, and it is oftentimes right and expedient that the Wrongdoer in such Case should be answerable in Damages for the Injury so caused by him: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, I. That whensoever 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 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, and although the Death shall have been caused under such Circumstances as amount in Law to Felony. II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such Action the Jury may give such Damages as they may think proportioned to the injury resulting from such Death to the Parties respectively for whom and for whose Benefit such Action shall be brought; and the Amount so recovered, after deducting the Costs not recovered from the Defendant, shall be divided amongst the before-mentioned Parties in such Shares as the Jury by their Verdict shall find and direct. III. Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint, and that every such Action shall be commenced within Twelve Calendar Months after the Death of such deceased Person. . . ... 96. REVISED STATUTES OF THE STATE OF NEW YORK, 1830. Actions for Wrongs, by or against Executors and Administrators. (Part III, Chap. VIII, Tit. III, Art. 1, p. 447, §§ 1, 21, as amended by Laws 1909; now Consolidated Laws 1909, Decedent Estate Law, § 120, Vol. I, p. 520.) For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. [St. 1909.] This section shall not extend to an action for personal injuries, as such action is defined in section thirty-three hundred and forty-three of the code of civil procedure; except that nothing herein con tained shall affect the right of action now existing to recover damages for injuries resulting in death. 97. LAWS OF THE STATE OF NEW YORK. Action for Causing Death. (St. 1847, c. 450, and St. 1849, c. 256; now Code of Civil Procedure, 1877, §§ 1902-4, as amended by Laws 1895, c. 946.) The executor or administrator 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. Such an action must be commenced within two years after the decedent's death. . . . The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons, as the surrogate deems proper. The damages awarded to the plaintiff may be such a sum as the jury, the Court, or the referee deems to be a fair and just compensation for the pecuniary injuries, resulting, from the decedent's death, to the person or persons for whose benefit the action is brought. 98. CONSTITUTIONAL CONVENTION OF THE STATE OF NEW YORK, 1894. (Record, Vol. II, Nos. 37, 57, pp. 593, 595, 582, 954, 961; July 31, Aug. 16.) The secretary read the minority report of the committee on preamble, as follows: "The undersigned, a minority of the committee on preamble, recommend to the Convention the following proposed constitutional amendment. To amend article one of the Constitution as to damages for the loss of human life. Article one of the Constitution is hereby amended by inserting the following as a new section: No statutory limitation shall be placed upon the amount of damages recoverable or upon the right to recover in a civil action for the loss of human life or for injury to the person. "GIDEON J. TUCKER, W. D. VEEDER, ANDREW H. GREEN." Mr. Veeder. I ask leave of the Convention to amend the minority report before it is printed, so that it shall read as follows: "Article one of the Constitution is hereby amended by inserting the following as a new section : "The right of action is hereby given for loss of life and for injury to the person, and no statutory limitation shall be placed upon the amount of damages recoverable or upon the right to recover by civil action for the loss of human life or for injury to the person." The President. Is that form assented to by your associates on the minority of the committee? Mr. Veeder. Yes, sir; I have just consulted them. The President. Then it will take that form, and will be so printed. . . . Mr. Tekulsky. Mr. President, In speaking upon the amendment proposed by my colleague, Mr. Tucker, of New York, and by myself at a later time, though without any knowledge of his action, it will be understood by you that by no possible construction can this be made to appear other than a measure for the common good. It is in no sense other than it appears, a proposition in the interest of humanity. It undertakes to stand between the existence of the home and family and the almost absolute taking away of its supporter and head. It leaves with an intelligent company of one's fellow citizens, before a dispassionate bar, the verdict of the monetary loss, to the family interested, of a human life. Nothing is more arbitrary or absurd than the law, as it now stands. That leaves no discretion and no difference in productive values. The man in midlife, rising in some high calling, until his abilities find a recognition and reward of the highest and most substantial character, cut off, say, in some accident, in the midst of his honors and usefulness, leaves his family and dependants precisely where the ignorant or depraved, with small abilities and few earning powers, would leave his. To say that the destruction of every man's life is recompensed by the payment to his survivors or dependents of a poor $5,000, is to put a low estimate upon human endeavor and ability, is to sell that which no earthly power can ever restore, at a price both paltry and mean. Too long has this low estimate and valuation been permitted to remain. . . ... Gentlemen, the time has come for you to say that at least real safeguards shall be thrown around human life, and that such safeguards shall be imbedded in our Constitution. The careful and accurate New York Sun of July 22, in commenting upon this amendment says, in its editorial columns, "It is a good constitutional amendment." Then it goes on to say: "In suits for wrongfully or negligently causing the death of a person, no more than $5,000 can be recovered in the courts of this State under the law as it now exists. Repeated efforts have been made of late years to get the Legislature to enlarge this sum to $10,000, but they have always failed. Now it looks very much as though the people would abolish the limitation altogether. And it ought to be abolished. In many cases $5,000 is grossly inadequate compensation for the direct pecuniary injury done to a man's family by wrongfully causing his death. Juries should be allowed to make good the actual loss, in cases of death, just as they are allowed to make good the actual loss in cases of injury not resulting in death. Under the present statute, however, a railroad accident which kills five persons may be better for the company, in a pecuniary sense, than in a like disaster in which the five are only maimed. In the former case, the corporation cannot lose more than $25,000; in the latter it may have to pay $100,000 or more. Under the common law of England and the American colonies, there was no such a thing as civil suit for wrongfully causing the death of another. In 1846, however, through the influence of Lord Campbell, Parliament passed a statute permitting such actions to be maintained for the benefit of the wife, husband, parent, or child of the person killed. It was entitled "An Act for compensating the families of persons killed by accidents," and has always been known as Lord Campbell's Act. It contained no limitation as to the amount which might be recovered, but provided that the amount should be divided among the parties for whom the suit was prosecuted in such shares as the jury by their verdict should direct. New York quickly imitated the example of England, and in 1847 the Legislature enacted a law similar to Lord Campbell's Act, which was the basis of all subsequent legislation in this State on the subject. In this first statute, however, there was no restriction as to the sum recoverable. That was introduced two |