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years later by the Legislature of 1849, which amended the law by inserting the $5,000 limitation, and this limitation has ever since been retained although the statute itself has now been made a part of the Code of Civil Procedure.

Laws framed on the general plan of Lord Campbell's Act have been adopted in New Jersey, Pennsylvania, Massachusetts, Minnesota, Iowa, Indiana, North Carolina, Georgia, Alabama, Oregon, and many other States. In Pennsylvania may be found a precedent for putting something in regard to such laws into the Constitution. The Constitution of that Commonwealth expressly declares that no act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons and property."

Mr. Barrow. Mr. Chairman, when this proposed amendment was reported to this Convention adversely by the committee to which it had been referred, I voted against the report. . . . I don't know from whence or from whom this proposed constitutional amendment comes. I assume that it emanates in part, if not wholly, from that element, of comparatively recent growth, which has come to hate the name and the existence of a corporation. For that class of people, whoever they may be, wherever they may exist, I have no sympathy. I believe that the corporations which have grown up in this State are beneficial institutions which should rather be fostered, than destroyed. I have no sympathy with the spirit that is constantly striking at them, and endeavoring to cripple them.

For the poor man, for the laboring classes, they should be everywhere and at all times encouraged. The more there are of them the more labor they furnish; the more there are of them the higher wages are secured; the more there are of them the greater is the competition and the lower are the prices of commodities. . .

And yet, sir, it has grown to be the fashion for both laborers and consumers to attack corporations as if they were the enemies of the State. It is the result, sir, as I believe, of the teachings of socialism, that exotic recently implanted into our soil and which only by reason of its novelty has unfortunately taken root. It is the vanguard of that other social evil, anarchy and chaos.

To this new element in our political life I am inclined to trace this proposed constitutional amendment.

But I think, sir, that it has another source. It comes here and is supported here very largely in the interest of the most conservative of all the governing classes, the lawyers. I do not think we have far to go for the reason why this amendment found so much strength on the floor of this Convention. This is a body of lawyers, of lawyers whose business and employment has frequently been to bring actions for negligence, and who for personal reasons do not wish their recoveries limited because such limitations limit their fees. At least 50 per cent of the cases of this character, I think, are taken up by lawyers on a division of the recovery, so that when they plead for the prohibition of this limitation at least 50 per cent of their pleading is for themselves.

What they plead for they say is just, and what they want is, that there shall be no limitation. They argue that the limitation is wrong upon the poor man. . . . But this proposed amendment is in the interest of the rich rather than in the interest of the poor.

The limitation of $5,000 on a life is the assertion practically that that is the value of a life whether it is the life of a poor man or a rich man. The poor man's relatives almost without exception get so much, and the rich man's next of kin get no more. Then, sir, you have equality.

Our friends would have this change. Let me state their case if I understand it. Take two men riding in the same railway carriage. One is a merchant who has laid by half a million dollars, and earns in his business $100,000 per annum. The other is a laborer who earns by his labor $300 or $400 a year. Both are killed in the same accident, and there is no limit on the recovery. The merchant's case goes before the intelligent jury, and if the two cases are decided upon the evidence which would be offered in such cases, the jury would be bound to consider in each case the value of each life upon its respective earnings. The jury would, however, consider $50,000 an enormous sum to be given to the rich man's next of kin, but if they applied the same measure of damage to the poor man's case, $300 (not $5,000) would be an enormous sum to give. The result, therefore, with honest juries under the guidance of the Court, with this limitation stricken from the statute might prove of benefit to the next of kin of the rich man, but fatal to the next of kin of the poor man. Neither railroads nor corporations of any kind would suffer from the adoption of the amendment proposed, so far as the claims of laboring men or poor men are concerned, but from the claims of rich men earning in their avocations large annual incomes. And the railroads forced to pay such sums would be compelled to recover the losses in some way. The only way that could be done would be to reduce labor. Thus the laborers would be compelled to pay in one way or another the damages which the railroads had been compelled to pay for the deaths of the moneymaking rich men by the verdicts of honest juries.

It has been said that the limitation in case of death, and the absence of limitation in the case of injury, presents an absurdity. I deny it. Right here comes in again the justice of the law to the poor man. Damages are awarded in such cases for pain and suffering, and the law says that a poor man's suffering from an injury is as great as the rich man's and should be paid with precisely the same liberality. And that is true, nay, it should be paid for with even greater liberality. The rich man with his means may alleviate some of the pain which the poor man must suffer. Therefore it is that in a case of injury there is no limitation by the statute of the damages which may be recovered. I assert that the limitation of $5,000 in the case of death, and the non-limitation in the case of injury go hand in hand, and that both are in the interest of the poor man and the laborer.

The law as it stands puts the money-maker and the rich on an equality with the wage earner and poor, and there I would have it remain. . . .

Mr. Marshall. Mr. Chairman, I think it is pretty well settled that the opinion of this body is that limitations upon the amount of recovery, in cases which flow from injuries resulting in death, should cease. It is also, it seems to me, the idea of everybody present, who has expressed himself upon this subject in favor of such limitation, that the right of action now existing, shall be continued. The fear is felt that perhaps the right of action might at some time be abrogated by the Legislature. To cover both of these ideas I have framed a provision which I will read: "The right of action to recover damages for injuries resulting in death, now existing, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation." The right of action which now exists is well defined in the statute. We all know what that is. It has been the subject of adjudication in this State for the last forty years. There is no doubt as to the meaning of this language, and, therefore, by reference to the cause of action now existing, and declaring that the right of action shall further continue, it avoids any circumlocution which has been suggested by some of

the amendments here. The concluding phrase is, that the amount recoverable can never be subject to any statutory limitation. .

Mr. Cassidy. Mr. Chairman, I am willing to withdraw my amendment and accept Mr. Marshall's amendment in its stead. . . .

Mr. Dickey. Mr. Chairman, I move that the committee now rise, report this amendment favorably to the Convention, and recommend its passage.

The Chairman put the question on Mr. Dickey's motion, and it was determined in the affirmative.

Whereupon the committee rose and Vice-President Alvord resumed the chair. . . .

The President pro tem. put the question on agreeing with the report of the committee, and it was determined in the affirmative.

99. ACTS AND RESOLVES PASSED BY THE GENERAL COURT OF MASSACHUSETTS. Survival of Actions. (Rev. St. 1836, c. 93, §§ 7, 8, and St. 1842, c. 89, § 1; now Revised Laws 1902, chap. 171, § 1.) Section 1. In addition to the actions which survive by the common law, the following shall also survive: actions of replevin, tort for assault, battery, imprisonment or other damage to the person, for goods taken and carried away or converted, or for damages to real or personal property, and actions against sheriffs for the misconduct or negligence of themselves or their deputies.

100. COMMONWEALTH OF MASSACHUSETTS. Official Report of the Debates and Proceedings in the State Convention assembled May 4, 1853, to Revise and Amend the Constitution. (Vol. III, pp. 86, 465, July 18, 27.) The Convention next proceeded to the consideration of the resolve on the subject of legal remedies to the representatives of persons killed by negligence or misconduct of railroad corporations, as follows:

Resolved, That where death is caused through negligence or misconduct, by means of railroads, steam-boats, or public conveyances for hire, the same remedies shall be open in a suit at law, as for like injuries to the person resulting in disability and not in death.

The question being on its second reading,

Mr. Hillard, of Boston. I rise to ask the gentleman who is chairman of the Committee which reported this resolve, to state some of the reasons why a provision of this kind should be placed in the Constitution at all, any more than a provision as to drawbridges, or the gauges of roads? I should like to know on what principle this is to be taken from the statute Law and placed in the Constitution?

Mr. Hallett. In reply to the question of the gentleman from Boston, I will state, that this subject was referred by the Convention to a Special Committee, who instructed me to report this provision. . . .

And why should this be put into the Constitution? I suppose, Sir, for this reason: that the courts of law in Massachusetts have decided that, by the common law, if a man is injured on a railroad by having an arm or leg broken, he is entitled to a remedy; but, that if he is killed, no damage is done whatever. That is the rule of law. The Supreme Court are called upon to construe all your laws. I am aware that there is a law providing a penalty of four or five thousand dollars for each passenger killed, and which is recoverable by indictment. That is a penalty in the nature of a punishment for an offence; but when you

come to your civil suits, and produce your Bill of Rights, which says that every person is entitled to a remedy for injuries received, what is the principle? If a man is maimed, and he goes before a jury, that jury determines what the injury is, and award him damages accordingly. But if a man on whose labor a wife and children depend for support, is killed at a blow, and his heir or administrator apply for damages, he is told by your courts that there is no injury, because he was killed outright, and all the damages that can be recovered would be for the suffering he endured, if you can prove it, for the few minutes which intervened between the time he received the blow and the time he ceased to breathe. Gentlemen tell us that we may go to the Legislature for the proper remedies. So you might, if your Legislature was not, in great part, composed of men who are either directors or stockholders in most of these companies; but if I judge rightly, this is a matter which is worthy of being put into your Constitution, that this great Moloch may be properly restrained.

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I am in favor of this proposition, considering that when your Bill of Rights declares that there shall be a remedy for all injuries, that remedy should provide for the injuries sustained by women and children who may lose their husbands and fathers, and, in that loss, their means of livelihood. In recent cases tried by the Supreme Court, the question was, whether a party who was killed lived long enough to maintain suit. If he did not, no remedy could be had, and especially where death was instantaneous. The Court would not allow such cases to go to the jury. They took it away from the jury, on the ground that there was no surviving injury on which an administrator could take action. . . . Mr. Cady, of Monson. It is quite immaterial, with me, in what way, and by what means, this protection shall be afforded — whether by the organic law, the statute law, or by the common law. But that no protection in cases now before the Convention is afforded, is true; but that is not all in relation to it. I hold that the eleventh article of the Bill of Rights, in the present Constitution, which contains this same principle, has not afforded any protection, either in this or other cases. . . . The present article says: "Every subject of the Commonwealth ought to find a certain remedy, by having a recourse to the laws for all injuries or wrongs which he may receive in person, property, or character." I claim that no person has ever had a remedy for an injury which caused death, as he had for wrongs to character or property. The article farther says: "He ought to obtain right and justice freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws." . . . Now, Sir, I contend that no person has ever had the benefit of the provision here made, or intended to be made, by this article of the Bill of Rights. A man can injure and wrong his fellow-citizen, and there is no remedy against him which can be applied. . . .

Mr. Davis, of Plymouth. Owing to the lamentable circumstances to which the gentleman has alluded, I have hesitated to propose the motion which I shall offer before I sit down, until I could hear the gentleman for Wilbraham (Mr. Hallett) explain the reasons for his amendment. It seems to me that no good reason can be assigned why a provision providing only a simple remedy for an evil, for injuries, for trespasses, &c., should be put into the Constitution; and, especially, no good reason can be given why it should be put into the Bill of Rights. If it were proposed to put into the Constitution a provision, that for all injuries by tort, an action at law should lie, and that when such tortious injury resulted in death the action should survive, I could see some reason for the principle, but certainly none for such a provision as this. I understand that the lia

bility, to some extent, is now perfect by the act of the legislature. And I also understand him to admit that the legislature have now full power to enact sufficient laws with regard to all remedies affecting the person, whether they result in death or not. If that be so, I see no reason why the provision should be placed in the Constitution or in the Bill of Rights. If gentlemen will look at this resolve as reported, it seems to me they will find that it is too vague and indefinite. In point of fact, nothing can be made of it whatever, and I ask gentlemen of the Convention, before they make up their minds upon this question, to read the provision. It is this: "Where death is caused through negligence or misconduct by means of railroads, steam-boats, or public conveyances for hire, the same remedies shall be open in a suit at law as for like injuries to the person resulting in disability and not in death." That is, "where death is caused," "the same remedies shall be open as for a like injury," namely, death "resulting in disability and not in death." Will gentlemen also ask themselves what that same remedy is which shall be open at suits at law for injuries resulting in disability and not in death? Does the Committee mean that the like rule of damages shall apply to injuries resulting in death, that now apply to injuries which do not result in death? Or does the Committee mean to say a jury shall be called upon, without any limit, to estimate, in broad terms, the value of life? What is the limit? It seems to me, that, if called upon as a juror, as perhaps I may be, to consider that question, I might say that the value of a man's life was a million of dollars, and this constitutional provision might require that of me; or else for so I read this resolve- or else I should be called upon merely to decide that the party entitled to some remedy is entitled to the same remedy which he would be entitled to for an injury resulting in disability and not in death, no matter how small the damage may be. It seems to me there is this inconsistency and this vagueness. I therefore move that this resolution be laid upon the table.

The question was taken, and the motion was agreed to.

So the resolve was laid upon the table.

101. ACTS AND RESOLVES PASSED BY THE GENERAL COURT OF MASSACHUSETTS. Penalty on a Railroad Corporation for Loss of Life through Negligence. (St. 1853, c. 414; now Revised Laws of 1902, c. 111, § 267.) Section 267. If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or gross negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than five thousand dollars which shall be recovered by an indictment prosecuted within one year after the time of the injury which caused the death, and shall be paid to the executor or administrator, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin; but a corporation which operates a railroad shall not be so liable for the death of a person while walking or being upon its road contrary to law or to the reasonable rules and regulations of the corporation. Such corporation shall also be liable in damages in the sum of not less than five hundred or more than five thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort, commenced within one year after the

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