Murphy v. New York & New Haven Railroad

Ellsworth, J.

The single question raised on this motion in error is, whether there is a cause of action stated in the plaintiff’s declaration. The defendants claim that there is not; and in support of their position, urge that, as the action is case, consequential damages are necessary as the gist of the action, while there are none here alleged, inasmuch as the plaintiff’s intestate was killed instantly by the blow, and therefore could have sustained no consequential injury.

But it is alleged in the declaration that the running of the engine-upon the intestate, and his consequent death, were caused by the negligence of the defendants’ agents or servants, and although the form of action is case, as it must be of course if the defendants are liable at all, we think the injury is none the less direct and positive -than if trespass was the form of action. The intestate’s right of personal security has been wrongfully invaded, and that is distinctly alleged as the cause of action. In both cases the law attaches an injury to such a wrongful act.

But aside from this inference of law, it is alleged in the declaration that the blow was so violent as to produce the death of the intestate. And is this no injury ? If to take one’s liberty or one’s property without justification is an injury, how much more is the taking of human life.? The elementary books, in speaking of absolute rights, classify them thus:— 1st. The right of personal security; 2d. The right of personal liberty ; and 3d. The right to acquire and enjoy property. If these rights are valued in this order of preference, then every man *188 of common understanding would at once pronounce it absurd to hold that it is no injury to a person to take his life, while it is to strike him a light blow. Such a distinction is not worth talking about, and has no foundation or existence in the law, as it has none in common sense.

We admit that if death ensues either immediately or before suit brought or judgment recovered, at the common law the cause of action is gone, for the maxim is actio personalis moritur cum persona; but this ancient maxim is essentially modified in England by the statute of 4 Edw. III., and is more or less modified by statute in every state in our union. In this state we have not only modified it, but have even done it away entirely in a certain class of cases ; and it may be said generally to be greatly restricted and modified every where. Our statute, if it be applicable to the case at all, must be our guide exclusively in the consideration of the question before us.

By section 82 of the statute with regard to civil actions, it is provided that actions for injuries to person, reputation or property, where commenced before the death of the party injured, shall not abate because of his death, but his representative may enter and prosecute as if death had not intervened. Section 83 provides, as we understand it, that death at any time, either before or after bringing suit, whether it is simultaneous with the injury or of later result, forms no objection to the institution or maintenance of the action. How much therefore of the common law maxim remains in this class of torts we need not positively decide, but it is very clear that it is greatly restricted and qualified if not entirely exploded. Essentially this view is taken by the court of appeals in New York. Brown v. Buffalo & State Line R. R. Co.. 22 N. York, 191.

But it is to be observed that so far as any objection in this case is founded on the instantaneous character of the death of the intestate, there is no allegation in the declaration for it to rest upon. It is there alleged, it is true, that the intestate died in consequence of the blow received from the engine, but how soon after the blow does not appear. It is this supposed *189 instantaneousness of the death which the defendants have relied upon in support of their claim, and with reference to which they have read to us several decisions in the state of Massachusetts, in which the judges have held that if the death is absolutely simultaneous with the blow, so that there is no appreciable time for the accruing of a right of action before death to the person injured, the common law maxim still prevails ; but a moment’s attention to their statute will show that these decisions turned upon its peculiar phraseology, and throw no light whatever upon the case before us. The judges held that such is the language used there that death will still abate an action, unless the person injured lived long enough, after receiving the blow, to be entitled to an action in his own name. If he survives to that extent, though an action is not in fact commenced, his administrator may sue in his own name as administrator. In the last case cited, Hollenbeck v. Berkshire R. R. Co., 9 Cush., 480 , the court say that the intestate lived fifteen or twenty hours after he received his death wound, and though unconscious, an action could have been brought in his name, and that that right of action did not abate by his death. In a preceding case Kearney v. Boston & Worcester R. R. Co., same book, p. 108, the court remark that the intestate did not survive the injury at all, but the blow and death were simultaneous, and the administrator could not sue. Their language is as follows :—“ Here there was no time during the life of the intestate at which a cause of action could arise, because the life closed with the accident.” These decisions obviously do not turn at all on the want of injury, or the want of such an allegation or proof, but upon the want of a perfect cause of action before death, which alone could bring the case within their statute. We think that construction rather nice and technical, and were our statute the same as theirs we are not prepared to say we should adopt it; but our statute is quite different, and presents no such question for our decision. Its language is merely “ whether the injury do or do not result in death.” This certainly puts an end to the application of the common law maxim to this class of cases.

*190 We discover no error in the judgment below, and it is affirmed.

In this opinion the other judges concurred.