J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) online

. (page 1 of 192)
Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 1 of 192)
Font size
QR-code for this ebook


































CHAPTER XXXVII. — Damages Resulting from Death.

References are to sections.

No action for, at common law; admiralty gives statutes effect 1259

Nature of the statutory action 1260

Diversities as to beneficiaries ; rights of non-resident aliens . . . 1261

Only pecuniary losses compensated in England and Canada .... 1262
Same subject; rule in the United States; exemplary damages;

interest 1263

Recovery of nominal damages 1264

Recovery by widow 1265

Recovery by husband 1266

Children's loss from death of parent 1267

Facts and circumstances to be considered in estimate of damages 1268-1271

Recovery for death of cliild 1272-1275

Damages recoverable by collateral kindred 1276

Damages to the deceased's estate 1277

Special damages 1278

Contracts exempting from liability 1279

Where the injury is done in another state 1280

CHAPTER XXXVIII. — Seduction, Criminal Conversa-
tion AND Alienation of Affections.

The technical not the real gist of the action for seduction 1281

Who may maintain the action 1282

Evidence for plaintiff, and damages recoverable 1283

Evidence for defendant in mitigation 1284

Criminal conversation and alienation of affections 1285

CHAPTER XXXIX. — Damages for Torts in Admiralty.

Fundamental difference between liability in admiralty and at

common law ; exemplary damages 1286

Division of loss in collision cases; contribution between joint

wrongdoers 1287

Rule applicable to other torts; in what proceedings recovery

may be hjid by passengers ; nominal damages 1288




References are to sections.

Liability confined to proximate loss; certainty of damage .... 1289

Total loss ; elements of damage 1290

Total loss ; what is 1291

Partial loss ; elements of damage 1292, 1293

Interest 1294

Mitigation of liability 1295

Recovery by owner of cargo; who may sue 1296

CHAPTER XL. — Damages under the Federal Employers
Liability Act.

Introductory 1297

Historical 1298

Scope of act 1299

Amendment of 1910 1300

Validity 1301

Effect 1302

Same subject; effect on state compensation acts 1303

Binding effect of federal decisions 1304

Employers within the act 1305

Employees within the act; necessity for employment in inter-
state commerce 1306

Same subject ; tests 1307

Same subject; existence of relation of master and servant .... 1308
Same subject; necessity for direct and substantial relation to

interstate commerce 1309

Same subject; instrumentalities or employees engaged in both

classes of commerce 1310

Same subject; interstate character of traffic 1311

Same subject; trains operated between intrastate termini 1312

Same subject; injury while not actively employed 1313

Same subject; negligent fellow-servant need not be engaged in

interstate commerce 1314

Same subject; preparation of instrumentalities for use 1315

Same subject; employees of electric railways 1316

Same subject; employees engaged in construction work 1317

Same subject; repairs and maintenance 1318

Same subject; movement of cars, switching, coupling, etc 1319

Same subject; employees engaged in transportation by water .. 1320

Same subject; miscellaneous employees 1321

Negligence under the act 1322

Assumption of risk 1323

Contributory negligence; effect 1324

Same subject; distinction between contributory negligence and

assumption of risk 1325

Same subject; employee's negligence as the sole cause of injury 1326

Same subject; what constitutes contributory negligence 1327


References are to sections.

Same subject ; burden of proof 1328

Same subject; violation of federal statutes 1329

Same subject; instructions on contributory negligence 1330

Damages for personal injuries 1331

Damages in case of death ; beneficiaries 1332

Same subject; measure and elements of damages 1333

Same subject; recovery for pain and suffering of decedent .... 1334

Same subject; extraneous circumstances as affecting recovery 1335
Same subject; joinder of actions for pain and suffering and

pecuniary loss 1336

Same subject; instructions 1337

Same subject; apportionment of damages 1338

Same subject; distribution of the amount recovered 1339

Release, compromise, and former adjudication or recovery; re-
leases in general 1340

Same subject; release subsequent to injury 1341

Same subject; compromise or release by decedent as affecting

action for his death 1342

Same subject; effect of release by beneficiary 1343

Same subject; power of representative to compromise 1344

Same subject; former adjudication or recovery 1345

Limiitation of actions 1346

Pleading; requisites and sufficiency in general 1347

oame subject; amendments 1348

Same subject ; actions for death 1349

Same subject; alternative; allegations setting up both state

and federal law 1350

Practice in general 1351

Same subject
Same subject
Same subject
Same subject
Same subject
Same subject

parties 1352

removal of causes 1353

evidence 1354

instructions 1355

special interrogatories 1356

question for jury 1357

Appeal and error 1358

CHAPTER XLI. — Wokkmex's Compensation Acts.

Introduction 1359

Nature, scope, and effect 1360

Constitutionality in general 1361

Same subject; delegation of judicial functions 1362

Same subject; abolition of defenses 1363

Same subject; police power; vested and contract rights; due

process of law 1364

Same subject ; right to jury trial 1365

Same subject; right to judicial remedies 1366


References are to sections.

Same subject ; impairment of obligation of contracts 1367

Same subject; compulsory acts 1368

Same subject; provisions governing partial invalidity 1369

Same subject ; tax provisions 1370

Same subject; by whom and how constitutional question may be

raised 1371

Same subject; insurance provisions 1372

Conflict of laws 1373

Existence of relation of master and servant 1374

Election 1375

Employments within the acts 1376

Accidents or injuries arising out of and in the course of employ-
ment ; general rules 1377

Same subject; disease 1378

Same subject; wilful misconduct 1379

Same subject; acts of nature 1380

Same subject; sportive acts 1381

Same subject; suicide 1382

Same subject; intermission from or suspension of work 1383

Same subject ; assaults 1384

Dependency 1385

Notice 1386

Award of compensation 1387

Injuries caused by negligence of third persons 1388





§1259. No action for, at common law; admiralty gives statutes effect.

1260. Nature of the statutory action.

1261. Diversities as to beneficiaries; rights of non-resident aliens.

1262. Only pecuniary losses compensated in England and Canada.

1263. Same subject; rule in the United States; exemplary damages; in-


1264. Recovery of nominal damages.

1265. Recovery by widow.

1266. Recovery by husband.

1267. Children's loss from death of parent,

1268-1271. Facts and circumstances to be considered in estimate of dam-
1272-1275. Recovery for death of child.

1276. Damages recoverable by collateral kindred.

1277. Damages to the deceased's estate.

1278. Special damages.

1279. Contracts exempting from liability.

1280. Where the injury is done in another state.

§ 1259. No action for, at common law; admiralty gives stat-
utes effect. By the common law all right of action for personal
injury, whether it be the cause of death or not, is extinguished
by the death of the injured party; the cause of action dies with
the person entitled to sue.^ By that law the death of a human

1 Broom's Leg. Max. 400; Zabris- Dec. 545; Gulf, etc. R. Co. v. Beall,
kie V. S*ith, 13 N. Y, 322, 64 Am. 91 Tex. 310, 41 L.R.A. 807.

*See ch. 40, post, damages under the Federal Employers' Liability


Suth. Dam. Vol. V.— 1.



[§ 1259

being is not a private wrong and no compensation therefor or
for any resulting loss is recoverable.^ The same doctrine pre-
vails under the general maritime law where death is the result of
negligence.^ Various reasons have been suggested to account for
this rule ; and it is probable that they have not wholly lost their
force.* The rule does not, however, prevent an action by the
master for the loss of the services of his apprentice or by the hus-
band for those of his wife by a wrongful personal injury
though death ensue; since in these cases the action aecnied to
the master or husband, and no reasons exist for holding that the
death of the injured ser\'ant or wife could affect it.^ By parity
of reason, why should not the parent have his action for a like
loss in case of injury to his infant child, notwithstanding the
death of such child ? ^ In these cases the damages are not the
result of the death but of the wrongful act disabling the person

2 Sherlag v. Kelley, 200 Mass.
232, 19 L.R.A.(N.S.) 633, 128 Am.
St. 414; Gilkerson v. Missouri Pac.
R. Co., 222 Mo. 173, 24 L.R.A.
(KS.) 844; Duncan v. St. Luke's
Hospital, 113 App. Div. (N. Y.)
68; Harshman v. Northern Pac. R.
Co., 14 X. D. 69: Shaw v. Charles-
ton, 57 W. Va. 433; Insurance Co.
V. Brame, 95 U. S. 754, 24 L. ed.
580; The Harrisburg, 119 U. S. 199,
30 L. ed. 358; Nickerson v. Harri-
man, 38 Me. 277; Carey v. Berk-
shire R. Co., 1 Cush. 475; Connecti-
cut Mut. Ins. Co. V. New York R.
Co., 25 Conn. 272, 65 Am. Dec. 571;
Green v. Hudson River R. Co., 28
Barb. 9, 2 Keyes 294; Worley v.
Cincinnati R. Co., 1 Handy 481;
Pennsylvania R. Co. v. Adams, 55
Pa. 499; Selma R. Co. v. Lacey,
49 Ga. 106, 14 Am. Neg. Cas. Ill,
218; Long v. Morrison, 14 Ind. 595,
77 Am. Dee. 72 ; Indianapolis, etc.
R. Co. V. Keely, 23 Ind. 133; Hyatt
V. Adams, 16 Mich. 180; Kramer v.
San Francisco St. R. Co., 25 Cal.
434; Grosso v. Delaware, etc. R.
Co., 50 N. J. L. 317; Eden v. Lex-

ington R. Co., 14 B. Mon. 204. See
§ 1273 for the rule in Louisiana.

3 In re La Bourgogne, 117 Fed.

4 See Hyatt v. Adams, Connecti-
cut Mut. L. Ins. Co. V. R. Co., Gros-
so V. R. Co., Worley v. R. Co., supra.

5 Indianapolis & M. R. T. Co. v.
Reeder, 42 Ind. App. 520.

Such cases are distinguishable
from those in which death is the
fact on which the right of action
depends, as in Connecticut Mut. L.
Ins. Co. V. R. Co., supra, in which a
life insurance company unsuccess-
fully sought to recover from a rail-
road company damages for negli-
gently causing the death of a
person whose life it had insured,
thereby subjecting it to the payment
of the policy.

6 Eden v. R. Co., Hyatt v. Adams,
supra; Jackson v. Pittsburgh, etc.
R. Co., 140 Ind. 241, 49 Am. St. 192;
Sorensen v. Balaban, 11 *pp. Div.
(N. Y.) 164.

Burial expenses of a child are
the result of its death, and cannot


from whom the plaintiff had the right to service, and the
recovery is limited to the loss during the interval between the
injury and the death.' But the rule is not so limited in some
states.' In England it is not so limited unless the death
formed an essential part of the cause of action. AYhere the
action was by the husband against the seller of unwhole-
some food which caused the death of the wife he recovered the
increased expense incurred after her death in securing such
services as she had customarily rendered in caring for his
home and family; but could not recover the expenses of her
funeral.^ In this country the last limitation is not everj^where
recognized if death was not coincident with the injury; the
husband has been permitted to recover, on common law prin-
ciples, for the loss of the services of his wife, for his loss of
time and the expense incurred in her burial.^"

The common-law rule has been abrogated by statutes in all
or nearly all the states of the Union as well as in England.
These provide that compensation may be recovered for the
injury or pecuniary loss resulting from the death of a person,
caused by the wrong-ful act or negligence of another. For
reasons connected with the public good this modern legislation
has in special cases, and for the benefit of particular persons
and to a limited amount, created a liability for injuries resulting
from death where caused by misconduct of a certain specified
character. These enactments subject the wrong-doer to damages

be recovered except under a statute. "^ Jackson v. R. Co., Sorcnson v.

Jackson v. etc. R. Co., supra. Balaban, supra.

In Baker v. Bolton, 1 Camp. 493, ' Stevenson v. Bitter L. Co., 108

Lord Ellenborough ruled that the ^a. 575, 18 L.R.A.(N.S.) 316; Ed-

, , -3 . , ^ X r x__ gar v. Castello, 14 S. C. 20, 37 Am.

husband might recover for distress ° „ . ,, / ,

, , , .XX Rep. /19: Harris v. Kentucky L.

of mind and loss of society from ^ ,t' ^ -. o ^t n^

, , . Co. (Ky.), ti b. \ \ . 94.

the moment of the injury to his , j^^^^^^^ ^ ^^^^,^^^ (1009), 2

wife up to the time of her death, ^ ^ ^^^ Compare Shorlag v.

but that in a civil court the death j^^^^y^ supra.

of a human being could not be com- ^^ p^j^^^^ ^ Northern Pac. R. Co.,

plained of as an injury; and the 46 Wash. ^73, 9 L.R.A.(X.S.) 1193,

damages to the plaintiff because of 123 Am. St. 926, following Worloy

the injury to hia wife must stop y r_ Co., supra; Davis v. Railway

with the period of her existence. Co., 53 Ark. 117, 7 L.R.A. 283.


which arc to be appropriated as is jnst for the benefit of those
who, in ordinary cases, would be the greatest pecuniary suf-
ferers." Because death is the fact which gives the right of
action the damages recoverable are to be measured by the law in
force when that event occurred, and not that in effect when the
injury which resulted in death was sustained.^^

Courts of admiralty give effect to such statutes when they are
operative in the territory in which life was lost,^' and this may
be done in proceedings by the owner of the vessel which was the
cause of the death for a limitation of his liability under the
federal statute.^* In such cases the recovery will not be limited
according to the maritime law, nor by the seaman's contract
with his employer, nor by the Harter act, nor by the negligence
of the vessel on which the deceased was employed,^^ but by the
statutes or decisions of the highest court of the state to which
the vessels belonged; the amounts awarded by juries in partic-
ular cases are not to be considered as binding precedents.'^®

§1260. Nature of the statutory action. By statute in some
states the right of action of the injured party survives for
all damages which he was entitled to recover; it is preserved
notwithstanding his death. But in an action which so survives,
any damages which resulted from the death are not recover-
able." Such legislation and the rights accruing thereunder

11 Connecticut Mut. L. Ins. Co. v. 15 Same cases, 207 U. S. 398, 52
New York, etc. R. Co., 25 Conn. 275, L. ed. 264, aff'g 146 Fed. 724.

65 Am. Dec. 571. ^^ The Saginaw and The Hamil-

12 Weber V. Third Ave. R. Co., 12 ton, 139 Fed. 906; Quinette v.
App. Div. (X. Y.) 512; Keeley v. Bisso, 69 C. C. A. 503, 13G Fed. 825,
Great Northern R. Co., 139 Wis. 5 L.R.A.(X.S.) 303.

448. In case of the death of a sea-
ls The Harrisburg, 119 U. S. 199, man the ground or extent of his re-
30 L. ed. 358; State v. Hamburg- covery in tort, had he lived, does
Am. S. P. Co., 190 Fed. 240; In re not prevent the recovery of full in-
Clyde S. S. Co., 134 Fed. 95; Trauf- demnity under the statute of the
fler V. Detroit & C. N. Co., 181 Fed. state upon which the action is
256, 4 N. C. C. A. 977; Cornell S. brought. Cornell S. S. Co. v. Fal-
Co. V. Fallon, 102 C. C. A. 345, 179 Ion, 102 C. C. A. 345, 179 Fed. 293.
Fed. 293. - 17 Melzner v. Northern Pac. R.
14 The Northern Queen, 117 Fed. Co., 46 Mont. 162; Stewart v.
906; The Hamilton, 77 0. C. A. 150, United E. L. & P. Co., 104 Md. 332,
146 Fed. 724. 8 L.RA.(N.S.) 384, 118 Am. St.

§ 1260J



are therefore not germane to the subject of this chapter.^' In
some states provision is made by statute for the survival of the
action which accrued to the deceased for all the damages he
was entitled to recover; and also , damages resulting to the
parties for whose use and benefit the action survives from the
death, consequent upon the injuries received.^^ The latter dam-

410; Wetliercll v. Cliicago City R.
Co., 104 111. App. 357; Kyes v. Val-
ley Tel. Co., 132 Mich. 281, 13 Am.
Neg. Rep. 340; Hendricks v. Amer-
ican Exp. Co., 138 Ky. 704, 32
L.R.A.(N.S.) 867; Bellamy v. Whit-
sell, 123 Mo. App. 610. See Louis-
ville & N. R. Co. V. Simrall, 127
Ky. 55.

Under other statutes the right of
action for a personal injury sur-
vives the death of the person in-
jured, and the recovery by his per-
sonal representative is the value
of the life of the decedent to him.
Kling V. Torello, 87 Conn. 301, 46
L.R.A.(N.S.) 930.

18 Gately v. Taylor, 211 Mass.
CO, 39 L.R.A.(N.S.) 472. See Love
V. Detroit, etc. R. Co., 170 Mich. 1;
Goodsell V. Hartford, etc. R. Co.,
33 Conn. 51 ; Olivier v. Houghton
County St. R. Co., 134 Mich. 367.

Where an action for death w^as
pending at the time a statute was
enacted providing for the recovery
for the conscious sufl'ering of the
decedent and the pleading in the
original action was amended after
the enactment of the statute a limi-
tation in the original death statute
as to the amount of the recovery
had no effect upon the new cause
of action, the recovery iinder which
was governed by coraraon-law rules.
Gilpatrick v. Cotting 214 Mass.

19 Mahoning Valley R. Co. v. Van
Alstine, 77 Ohio 395, 14 L.R.A.
(N.S.) 893. See Wabash S. D. Co.

v. Black (Tenn.), 61 C. C. A. 639,
126 Fed. 721; St. Louis, etc. R. Co.
V. Stamps, 84 Ark. 241; Code of
Tennessee, §§ 2291, 2292, Act of
March, 1883; Illinois Cent. R. Co.
v. Crudup, 63 Miss. 291, 9 Am. Neg.
Cas. 491; Louisville, etc. R. Co. v.
Burke, 6 Cold. 45; Nashville, etc.
R. Co. v. Prince, 2 Heisk. 580; Hol-
ton v. Daly, 106 111. 131; Merri-
hew V. Chicago City R. Co., 92 111.
App. 346.

In Tennessee all the damages re-
sulting from the death of a wife
and mother, including those sus-
tained by her infant child, are to be
recovered by the husband as admin-
istrator. Railroad v. Johnson, 97
Tenn. 667, 34 L.R.A. 442.

In Michigan the right of action
given by statute to the personal
representatives of the deceased for
the personal injury resulting from
his negligent killing and that which
survives under another statute, for
negligent injuries to persons, are
not separate and distinct causes of
action, nor is the remedy under the
latter statute excluded because
death ultimately ensued from the
injury. Dolson v. Lake Shore, etc.
R. Co., 128 Mich. 444. Compare
Hurst v. Detroit City R. Co., 84
Mich. 539.

The opposing view is held in
Colorado. Kelley v. Union Pac. R.
Co., 16 Colo. 455, 9 Am. Neg. Cas.

In Kentucky one statute provides
for the survival of actions for per-



[§ 1260

ages are those generally provided for in statutes which are the
subject of this chapter. In this country they are chiefly mod-
eled after the English statute commonly called Lord Campbell's

sonal injuries and another for the
recovery of damages resulting from
death when it is caused by any
wrongful act or negligence. Under
the former there can he no recovery
where the injury causes immediate
death, for then there was in the de-
cedent no right of action to sur-
vive. It is otherwise if there was
an appreciable interval. It is held
in that state, where the personal in-
jury causes death but not instantly,
that there is an election to sue un-
der either provision; but recovery
dnder one bars recovery under the
other. Hansford v. Payne, 11 Bush
380; Connor v. Paul, 12 id. 144.

In Illinois, under similar provi-
sions, it is held that an action which
survives is for a personal injury
which does not cause death ; that
an action given for recovery of dam-
ages which result from death is
the only action for the negligence
or fault which causes it. Holton v.
Daly, 106 111. 131.

The same is held in Kansas: Mc-
Carthy V. Railroad Co., IS Kan. 46,
26 Am. Eep. 742; Eureka v. Merri-
field, 53 Kan. 794; Martin v. Mis-
souri Pac. R. Co., 58 Kan. 475, 3
Am. Xeg. Rep. 165. See Hulbert v.
Topeka, 34 Fed. 510. And in
Rhode Island: Lubrano v. Atlan-
tic Mills, 19 R. I. 129, 34 L.R.A.
797. See Southern Bell Tel. & T.
Co. V. Cassin, 111 Ga. 575, 50
L.R.A. 694, where the question is
discussed in its bearings upon
another issue.

In Maine the damages resulting
from death are allowed only in
cases where the death was instan-
taneous; and where the injured per-

son does not die immediately the
action survives and no other rem-
edy is needed. State v. Maine Cent.
R. Co., 60 Me. 490, 15 Am. Neg.
Gas. 294 ; State v. Grand Trunk R.,
61 Me. 114, 14 Am. Rep. 552, 15 Am.
Keg. Gas. 294.

The same rule has been applied
to ch. 124, laws of 1891. Sawyer
v. Perry, 88 Me. 42, 15 Am. Neg.
Gas. 291.

The language of the statutes
where survival of actions for per-
sonal injury is provided for and
there is also provision for recovery
of damages resulting from death is
broad enough to entitle the person-
al representative to recover the
damages which accrue to the de-
cedent and also those which result
from the death ensuing from the
same injury. As appears by the
foregoing cases, there is a reluc-
tance in the states from which those
citations are taken to allow dam-
ages in this broad sense, or to re-
gard those statutes as aflfording a
right to cumulative damages. The
actions thus provided for give dam-
ages mostly of a dififerent nature,
and it would seem quite consistent
with the policy of the statutes, if
not necessary to their natural force
and operation, to allow both classes
of damages. To hold otherwise, if
death ensues from the personal in-
jury for which the injured person
has a right of action, is unwar-
rantably to restrict the operation
of the statute. There is nothing on
the face of these statutes to make
one operate to repeal the other or
to require an election under which
the action ahould be brought, with




Act, the text of -which will he found in a note.^° There has been
some diversity of expression as to the limits of the cause of

the effect of renouncing the right
given by the other.

The view expressed in this note
is in accord with Vicksburg & M.
E. Co. V. Phillips, 64 Miss. 693;
Davis V. Railway, 53 Ark. 117, 7
L.R.A. 283; Brown v. Chicago, etc.
R. Co., 102 Wis. 137, 44 L.R.A. 579;
Hurst V. Detroit City R. Co., 84
Mich. 539 (but see Dolson v. Lake
Shore, etc. R. Co., supra) ; Leggott
V, Great Northern R. Co., 1 Q. B.
Div. 599 ; Robinson v. Canadian
Pac. R. Co., [1892] App. Cas. 481;
Needham v. Grand Trunk R. Co.,
38 Vt. 294 (compare the last case
with Legg V. Britton, 64 Vt. 652;
Hedrick v. Ilwaco R. & N. Co., 4
Wash. 400 ; Connors v. Burlington,
etc. R. Co., 71 Iowa 490, 60 Am.
Rep. 814; Putnam v. Southern Pac.
R. Co., 21 Ore. 230; Belding v.
Black Hills, etc. R. Co., 3 S. D. 369 ;
Hamilton v. ^Morgan's L. & T. R. &
S. S. Co., 42 La. Ann. 824. See
Mulchahey v. Washburn C. W. Co.,
145 Mass. 281, 1 Am. St. 458, 15
Am. Neg. Cas. 621.

Under the Pennsylvania statute
providing for the survival of ac-
tions in negligence cases where the
plaintiff dies, recovery may be had,
not only for the mental and plnsi-
cal suffering up to the time of death
and diminution of earning power
during the period he would proba-
bly have lived, but also for the
value of his life. Maher v. Phila-
delphia T. Co., 181 Pa. 391. By
the value of the life is meant, not
its value to others, but the value
of the advantages of which the in-
jured party was deprived because
of the diminution or loss of earn-
ing power. No damages can be re-

Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 1 of 192)