Green v. Hudson River Railroad

This action is brought by the plaintiff, as administrator of his deceased wife, to recover damages for the loss of her life, which occurred instantaneously by the collision of the cars on the defendant’s road, she being a passenger therein at the time. The action is instituted under the statute of this state, requiring compensation for causing the death of any person by wrongful act, neglect or default. The complaint sets forth the facts of the case, averring the negligence, and the death caused thereby, and then alleges that Margaret Ford, the mother of the deceased, and her next of kin, suffered loss and damage thereby, and avers specially that she was aged and infirm, and dependent upon the deceased for her *267support, which support was rendered by the deceased; that by the shock and the mental distress ensuing, her health had been impaired, and she has become incapable of maintaining herself.

To this, complaint the defendant has interposed a demurrer, which (omitting some special grounds to the form of the complaint) presents the general question, whether sufficient facts are stated to constitute a cause of action.

I shall assume that at common law no right of action whatever exists, or can be maintained by any person, under the circumstances of this case. It is only by virtue of the statute, which was intended to remedy this defect, and reverse the rule of the common law, that this suit can be maintained, and the question then is, is this a case coming within the terms or spirit of the act.

As an original question, I confess my impressions would be strongly against the maintenance of this suit. The intent of the statute being to give a remedy where none existed before; it is obvious to remark that its benefits can only be extended to those who are included within its terms. The first section gives a right of action wherever the party killed would have been entitled to bring a suit for the injury, if death had not ensued. The second section provides that the suit shall be brought in the name of the personal representatives of the deceased person, and that the amount recovered shall be for the exclusive benefit of the widow and next of Idn of the deceased; and the jury may give such damages, not exceeding five thousand dollars, as they shall deem fair and just, with reference to the pecuniary injuries resulting from such death to the widow and next of kin of such deceased person. The plain and literal interpretation of this statute would seem to require that the party killed must be one who could, in his or her own right and name, maintain a suit if death had not ensued, and also that there must be both widow and next of kin surviving, in order to authorize a recovery, and that some pecuniary injury must be shown to lay a foundation for damages.

*268All the cases, with the exception of a special term decision of Judge Harris, reported in 12 How. 323, and a case to which I shall refer hereafter, seem to take for granted the first part of this proposition, or at least they were cases where there could be no doubt on this point, because the party injured was a single person. The case of Lynch agt. Davis, (12 How. 323,) above referred to, was an action brought under the statute by a husband, as administrator of his wife, for alleged malpractice ensuing in her death. Judge Harris, among other 'things, held, that the case was not within the statute, for the reason that the wife, if she had survived, could not have maintained the action, since the suit must either have been in favor of the husband alone, or the husband-and wife as joint plaintiffs, and that the case was therefore not within the terms or intent of the statute.

In regard to the other suggested interpretation of the statute,, to wit: that there' must be both widow and next of kin among whom distribution can take place, in order to ground a right of recovery, several cases have arisen in which the conclusion has been reached, that if there be either a widow, or next of kin surviving, the action can be maintained. In the case of Safford agt. Drew, (3 Duer, 627,) the plaintiff was the administrator of his son, who it was alleged had lost his life by the wrongful act of the agent of the defendant, and he described himself simply as the father of the deceased. On demurrer the court held the complaint defective, because it did not aver that the deceased left a widow or next of kin. The statute is minutely examined and commented on by Judge Hoffman, and he says the court aje of opinion that the act may be so interpreted as to allow an action where there is a widow only, or next of kin only, as' well as where both are in existence.

■ In the case of Quinn agt. Moore, (15 N. Y. Rep. 432,) the party who lost his life, was a child of the age of .twelve years, and the action was brought by the administrator for the benefit of the mother, who it was admitted was the sole heir and next of kin to the child; a recovery was had and the judgment was *269sustained by the court of appeals. Judge Comstock, in giving the opinion says, that, the only condition on which the right of the administrator to sue under the statute depends, is the common law right of the injured person to maintain an action if he were living, and that it is not required that the person killed should be a husband, father or protector, although the legislature in passing the act were doubtless mainly influenced by the evident justice of compelling the wrongdoer to compensate families dependent, in a greater or less degree, for support, on the life of the deceased.

To the same effect is the case of Oldfield agt. Harlem R. R. Co., (4 Kern. 310,) in which case the court also held that no special pecuniary injury arising from the death need be averred or proved in order to enable the party to recover damages. Lucas agt. The New - York Central Railroad Company, (21 Barb. 245,) was an action brought by a husband in his own right, and as administrator of his deceased wife, who was instantly killed while on the cars of the defendant’s railroad. , The complaint was demurred to both on the ground of misjoinder of causes of action, and because there was no averment that the deceased left any next of kin. It was held defective on both grounds, and the court, Mr. Justice Welles giving the opinion, say, that if there is neither wife or next of kin, there can be no such pecuniary damages recovered as the act contemplates. They waived the other' question as one not necessarily presented, to wit: whether an action would lie for the death of a wife under the statute in any case.

At the Madison circuit in March, 1857, the suit of Lorenzo Dickens, adm'r of Sally Dickens, his wife agt. The New-York Central Railroad Company, was brought to trial, and resulted in a verdict for the plaintiff. It was brought under the statute, and the complaint alleged that the deceased was instantly killed by being run over by defendant’s cars, and that the plaintiff as her husband, and others the next of kin of the deceased, suffered loss and damage thereby. It was admitted that the deceased left no children or father or mother, but two brothers *270and a sister survived her. A motion for a new trial was made at the general term in the sixth district, and after argument the motion was denied, and the recovery sustained. I have been furnished with the opinion delivered by Judge Balcoh, in .which the other .judges concurred as is stated, on the ground that the decision in Quinn v. Moore, had settled the question that the plaintiff, as administrator of his wife, could sustain the action. In the opinion of Justice Balcom, it is held that if the plaintiff’s wife had not died, the defendant would have been liable to an action for the damages occasioned by the injury. He does not notice the distinction taken by Judge Harris, that an action could not have been maintained by the wife if she had survived, but holds that inasmuch as the defendant would have been liable to an action, if the wife had survived, the condition of the statute is fulfilled, and the right of the administrator to sue is clear. He also holds that the action can be maintained by the personal representatives of the deceased, although such deceased person left no husband or wife, or next of kin surviving, who could ever have any legal claim upon such person if living for services or support.

This decision covers all, and more than is claimed on the part of the plaintiff in this suit, for the averment here is, that the deceased left a mother her next of kin, who was dependent on the deceased for her support, and who, by reason of the death, has not only been deprived of this support, but has sustained other specific damages.

I do not profess to be entirely satisfied with the law as laid down in this case, and I follow it with some hesitation. But highly respecting the source from which it comes, and yielding to it as a decision of a co-terminous district, made at a general term, I think I am bound by its authority.

The result is, that there must be judgment for the plaintiff on the demurrer, with leave to defendant to answer on payment of costs.