Schwarz v. Judd

This action was brought by the plaintiff as personal representative of Jacob Jacobi, deceased, under Gen. St. 1878, *372c. 77, § 2, which provides that “when death is caused by the wrongful act or omission of any party, the personal representatives of the deceased may maintain an action, if he might have maintained an action, had he lived, for an injury caused by the same act or omission. * * * The damages thereon cannot exceed $5,000, and the amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person.” The case comes up on appeal from an order striking out as immaterial the following allegation of the complaint, to wit: “and that his (deceased’s) father, Peter Jacobi, a feeble old man, was and is his heir-at-law and next of kin.”

This right of action is given for the benefit of the widow and next of kin. The theory of the statute is that they have a pecuniary interest in the life of the deceased, and its object is to compensate them for their loss caused by his death. As their pecuniary loss is the sole measure of damages, so the satisfaction of that loss is the sole purpose for which the right of action is given. The statute, like those of a majority of the states of the Union, is borrowed in substance from the English statute of 9 & 10 Vict. c. 93, commonly known as “Lord Campbell’s Act.” The courts of England and generally of this country have adopted this view as to the purpose and object of these statutes, which we think is in accordance with their plain meaning and intent. The distinction must be kept in mind between such statutes and those which simply provide that a cause of action, for the benefit of his estate, shall survive the death of the person entitled k> the same. . Under .our statute,, the. damages which may be recovered are designed as a compensation or indemnity to certain persons, and not to the general estate, and therefore the fact that there are persons entitled to this indemnity, must be both alleged and proved in order to warrant a recovery. An allegation, therefore, that deceased left a widow, or next of kin, who áre entitled to compensation, is both material and necessary. Safford v. Drew, 3 Duer, 627; Lucas v. New York Cent. R. Co., 21 Barb. 245; Chicago & Rock Island R. Co. v. Morris, 26 Ill. 400; Conant v. Griffin, 48 Ill. 410. Even if it be true that the part of the complaint *373stricken out includes some statements that are immaterial or unnecessarily specific, this would not justify an order striking out the whole.

Order reversed.