
    Green vs. The Hudson River Rail Road Company.
    At common law, an action by a husband, for the loss of his wife who is killed by the careless and negligent act of a third party, can only be sustained where some period intervenes between the time of the injury and the time of her death, during which the husband can be said to have suffered the loss of her services and society, and incurred expense, and endured anxiety and distress on her account.
    Where death is the concomitant of the collision occasioning the injury, and life departs at the instant the shock is received, no action for loss of service can be sustained hy the husband of the deceased, because there is no time, during her life, when-it can be said that the husband has lost the service and society of his wife in consequence of the injury complained of.
    DEMURRER to complaint. The material portions of the complaint are set forth in the opinion of the court.
    
      M. S. Miller, for the plaintiff.
    I. An action at law brought by -the plaintiff against the defendant for the loss of service of the plaintiff’s wife, who was killed through the negligence of the defendant, will lie upon the principles of the common law. (Ford v. Monroe, 20 Wend. 210. Ware’s Rep. 69. Lynch 
      v. Davis, 12 How. 322.) The plaintiff, being entitled to the services of his wife during the period of her natural life, is entitled to recover the pecuniary damage he has sustained by the neglect of the defendant, to wit, the value of her services during the period she would have lived had she not been killed by the defendant. (12 B. Mon. 450.)
    . II. Wherever the law gives a right, the law gives a remedy for the wrongful deprivation of that right. Ubi jus ibi remedium. ■ (Broom’s Legal Maxims.)
    
    III. In an action on the case for negligence in driving a carriage, whereby the son of the plaintiff was run over and killed, tried before the Hon. Esek Cowen, he charged the jury that if the defendant was chargeable with negligence, the plaintiff would be entitled to recover such sum by way of damages as they should be of opinion the services of the child were worth until he became of age. The jury found for the plaintiff $200. The defendant moved for a new trial which was denied, and Nelson, Oh. J., says: “ The damages were specially laid in the declaration, and were clearly proved to have been the direct consequence of the principal act complained of, and they therefore came within the well settled rule respecting special damage.” (Ford v. Monroe, supra.) An action by a husband against a physician for malpractice, which caused the death of his wife, will lie. (Lynch v. Davis, 12 How. 322.)
    JV. So also by the civil law. According to Orotius, lib. 2, ch. 17, he who kills another unlawfully is obliged to make amends to those who had a right to be maintained by the deceased, such as his wife, his children, or his parents, according to the. value of what they might have expected to receive from him, considering his age, his fortune, and his employs ment. (Rutherf. Inst. of Natural Law, b. 1, ch. 17, § 9.)
    Y. There is no rule or principle of the English law which will prevent the recovery of damages against a wrongdoer, for loss of service sustained by a husband or parent by reason of the killing of a wife or child, except where the negligence charged amounted to a felony, (1.) The rule of the English law being that an injury which amounted to a felony could not be the subject of á civil action, (Yelv. 89, 90,) the civil remedy merged in the felony. Thus in Smith v. Sykes, (Freem. 224,) it was held “ that if A. beat the wife of B. so that she dies, B can have no action of the case for that; because it is criminal and of an higher nature.” The remedy was by indictment, or formerly by appeal, which the wife might have for killing her husband, provided she married not again. (4 Bl. Com. 312. • 3 Id. 119.) The reason of the rule being that public policy required that the offender should be prosecuted in the criminal courts. Although after acquittal of the defendant upon an indictment for a felonious assault, an action will lie for the civil injury; and after conviction and punishment on an indictment, the party robbed may support trespass against the offender. (12 East, 409. 1 Hall’s P. O. 546.) But by the law of the state of New York, the right of action of any person injured by any felony is not merged or in any way affected by the felony, (2 R. S. 292, 746, 700, § 14;) but a person injured by the commission of a felony becomes a creditor of the felon’s estate to the extent.of his damage, (2 R. S. 400, § 14;) and therefore the decisions founded on such reasons will have no weight with the court. Gessante rations, cessat et ipsa lex. (2.) The principle that requires compensation for the death of a freeman is not at all new in history. It was long an institution among our Anglo Saxon ancestors, and perhaps it was never absolutely abolished, but rather died out under the Norman conquest and the centralizing influence of , the king’s court, which treated all such wrongs as wrongs done to the king, and hence as criminal offenses. * * * A recent statute (9 and 10 Viet. eh. 93) seems to have revived the principle of the Saxon law, and allow the relatives of the deceased to recover damages according to the injury resulting to them respectively. (Lowrie, J., in Penn. R. R. Co. v. McGloskey’s Adm’r, 23 Penn. Rep. 529.) (3.) Under the feodal law a practical reason prevented actions of this character. The commission of felony, according to the fundamental principles of the feodal law, worked a forfeiture of the feudatory’s grant, and the forfeiture extending to the personal property of the felon to the crown, and the crime being punished by death, nothing remained to satisfy a private demand. ( Ware’s R. 69.)
    VI. The maxim, actio personalis moritur cum persona, does not apply to actions for loss of service, and is sustained only by a class of cases wherein damages for injuries, pain and mental distress, sustained by the person killed, are claimed.
    VII. In Baker v. Bolton, (1 Camp. 193,) which is a hasty nisi prius decision, made as late as 1808, not argued by counsel or sustained by any preceding case, or by any subsequent decision in the English courts, the court, overlooking the reason of the law, extended the rule to a case to which it did not apply, and the reporter appends a query to that branch of the decision which applies to this case. In every preceding case cited in the books, to sustain the doctrine that an action will not lie for damage caused by the death of a person, the action is merged in the felony. Higgins v. Butcher, ( Yelv. 89, 90,) was an action by a husband for the battery of his wife so that she died. In Smith v. Sykes, (1 Freem. 224,) it was held, if A. beat the wife of B. so that she die, B. can have no action on the case for that, because it is criminal and of a higher nature. So also 1 Levins, 247; Vin. Abr. 74, affirming same doctrine. 1 Keble, 487, was an action for placing posts in the highway. It was held that plaintiff must proceed by indictment. Dawkes v. Cavenigh, (2 Roll. Abr. 557, Style, 346,) was an action for money of which the plaintiff was robbed. Held that the action was merged in the felony. In Markham v. Cobb, (W. Jones, 147, Noy, 82, Leitch, 144,) it was held trespass will lie after conviction for burglary or felony. 1 Salk. 12, action for discontinuing a ferry. Held plaintiff must proceed by indictment. 18 Noy, is merely a legal maxim that a personal action dies with the person.
    VIII. The only point decided in Baker v. Bolton which militates with the position of the plaintiff, is the rule of damages, to wit; that the damages must stop with the period of the existence of the wife of the plaintiff, for it is not claimed that the death is a cause of action, but the loss of service. The true rule of damages, which is founded on reason and sound sense is, that the husband is entitled to recover the value of his wife’s services during the period which she would have lived had she not been killed. The proposition that if death followed instantly, there was no time during her life when the plaintiff had lost the services of his wife in consequence of the injury complained of, and therefore he cannot recover, whereas if she had lingered six months on her death bed, when it would have been impossible for her to render her husband a particle of service, would be preposterous.
    IX. The Massachusetts case, (1 Cush. 475,) is founded upon Baker v. Bolton and others; and the following decisions, extrajudicial and judicial, 9 Cush. 450; Id. 109; 1 Handy, 481; 14 B. Mon. 204; 10 S. & R. 31; 15 N. Y. R.; 3 Duer, 647; 21 Barb. 245; 10 Eng. Law and Eq. 438, are founded on 1 Cush. 1 Camp. and therefore of no greater force than 1 Campbell;—and 1 Handy, 481; 9 Cush. 480; Id. 109; 3 Suer, 647; 15 N. Y. Rep. 435; 10 Eng. Law and Equity, 438; 10 Serg. & Rawle 31, and 21 Barb. 215, are cases which arose under the statute, and all decisions therein are extra-judicial, the latter case being decided upon the ground of misjoinder, and the remarks in most of the foregoing cases apply to cases where the action is for the death of the person killed, and not for the loss of service.
    
      T. M. North, for the defendant.
    At common law no action lies to recover damages sustained by the killing of a human being. (Higgins v. Butcher, 1 Brownl. & G. 205; Yelv. 89, 90. Baker v. Bolton, 1 Camp. 493. 1 Chit. Pl. 69. Broom’s Legal Max. 702, 4th ed. 565. Statute 9 and 10 Victoria, § 1. Lucas v. New York Central Rail Road Co., 21 Barb. 245. Carey v. Berkshire R. R. Co., 1 Cush. 475. Skinner v. Housatonic R. R. Co., 1 Am. R. R. Cas. 442. Miller v. Umbehover, 10 S. & R. 31. Eden v. Lex. and Frankfort R. R. Co., 
      14 B. Monroe, 204. Worley v. Cin., Ham. and Day. R. R. Co. 1 Handy, 481. Quin v. Moore, 15 N. Y. R. 435. Safford v. Drew, 3 Duer, 637. Kearney v. Boston and Worcester R. R. Co, 9 Cushing, 105. Mann v. Boston and Worcester R. R. Co., Id. ib. Hollenbeck v. Berkshire R. R. Co., 9 Cush. 180. Laws of 1847, ch. 450, § 1.)
   Bacon, J.

The plaintiff in this case was the husband of Eliza Green, who lost her life on the 9th day of January, 1856, by a collision of the cars on the defendant’s rail road. The complaint avers that the deceased became a' passenger on the train from Albany to blew York, under the usual engagement to be safely carried, and that by the gross carelessness and unskillfulness of the defendant’s agents, a collision occurred, by means of which the said Eliza was then and there killed. The plaintiff then avers, that as the husband of the deceased, he has lost and been deprived of all the comfort, benefit and assistance of his said -wife, in his domestic affairs, which he might and otherwise would have had, to his damage of fifteen thousand dollars. To this complaint the defendant interposes a general demurrer, that it does not state facts sufficient to constitute a cause of action on the part of the plaintiff.

The case, as thus stated, presents the naked question whether, at common law, a husband can maintain an action for an injury to his wife, where the effect is her instantaneous death, as is conceded to have been the fact in this case. I should hardly have deemed the point one that was susceptible of much discussion; but the question has been seriously presented by the plaintiff’s counsel, and sustained by an argument of very considerable force and ingenuity. If this question were now for the first time agitated, I should concede that there is great plausibility, at least, in many of the views taken by the counsel, and that they go far to uphold the right to recover for an injury that strikes the mind as one of the most serious and painful to which we can be subjected, and which, in this particular case, was attended by the loss of a life for which no amount of pecuniary compensation can atone. The counsel for the plaintiff insists that the action can he maintained upon the broad principle that there can be no wrong without an appropriate remedy; that' the maxim applicable to personal injuries, of the non-liability of the wrongdoer upon the supervening death of the sufferer, has no relevancy to this case; and that as the act of the defendant did not amount to a felony, the civil remedy is in no respect lost or impaired. But I suppose the question has been too long settled, both in England and in this country, to be disturbed, and that it would savor somewhat more of judicial knight errantry, than of legal prudence, to attempt to unsettle what has been deemed at rest for more than two hundred and fifty years. One of the earliest cases in the books, is Higgins v. Butcher, which arose in the time of James the 1st, about the year 1600, and is reported in Brownlow and also in Yelverton, and cited in Noy with approbation. The case is .reported in Yelverton, 89 and 90, as follows : “ The plaintiff declared that the defendant assaulted and beat one A., his wife, on such a day, of which she died such a day following, to his damage, &c. And it was moved by Foster Sergeant, that the declaration was not good, because it was brought by the plaintiff for beating his wife, and that being a personal tort to the wife, is now dead with the wife, and if the wife had been alive, he could not, without his wife, have this action, for damages shall be given to the wife for the tort offered to the body of his wife. Quod fuit concessum.” In a note in this case, in Yelverton, it is said that as the action was brought to recover damages for the injury to the wife, it is very clear that it could not'be supported, and to this effect the case of Smith v. Sykes, (1 Freeman, 224,) is cited. The next case in the books, did not occur, so far as I can discover, until 1808, and arose before Lord Ellen-borough, at nisi prius. It is the case of Baker v. Bolton et al. (1 Camp. 493.) The action was brought against the defendants as proprietors of a stage coach, on the top of which the plaintiff and his late wife were traveling from Portsmouth to London, when it was overturned, whereby the plaintiff was bruised, and his wife so severely injured, that she died about a month after. The declaration, among other things, stated that by means of the premises, the plaintiff had wholly lost and been deprived of the comfort, fellowship and assistance of his said wife, and had suffered great grief and vexation of mind.” Lord Ellenborough instructed the jury that they could only take into consideration the bruises inflicted on the plaintiff, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of dissolution. “ In a civil court,” he adds, the death of a human being could not be complained of as an injury.” In a note at the foot of this case it is said, “ Quere. If the wife be killed on the spot, is this to be considered damnum absque injuria ?” and clearly it must be so, on the principle announced in the decision. The doctrine thus laid down by Lord Ellenborough has not been questioned in England from that day to this, as a principle of the common law. It is true that the decision was made at nisi prius, but it has the sanction of the great name of Lord Ellenborough, and having been followed ever since without dissent, in England, has the authority of a case decided in banco regis.

The counsel for the plaintiff suggests, and indeed, strongly insists, that the principle thus adjudged arose out of the feudal law, which would not allow a prosecution for a civil injury, where the act amounted to a felony. The reason for this, is said to be that the crime worked not only a forfeiture of the feudatory grant, but extended also to his personal estate, and the felon being also liable to be capitally punished, there would thus nothing be left to satisfy the private demand. This reasoning is somewhat recondite, and certainly has very little application at the present day.

It is indeed said, in the case in Yelverton above cited, by one of the justices, that if a man’s servant is beaten so that he dies, the master shall not have an action against the wrongdoer for the battery, because the servant dying,- it has now become an offense to the crown, being converted into a felony, and that drowns the particular offense and private wrong, and the action is thereby lost; and to this, it is said, the other justices agreed. If this could be deemed law 250 years ago, it is not now, to the full extent of the doctrine laid down; for nothing is clearer than that in England the civil remedy is not gone by reason of the criminal offense, since repeated adjudications have settled the rule that after a trial and conviction upon an indictment for a felony, the party is liable to a civil suit for the injury he has occasioned, as he also is where he is acquitted, unless the acquittal was procured by fraud. (See Latch, 144; 1 Hale’s P. C. 5, 6; Cowsley v. Leing, 12 East, 400.) The offender must first be brought before the criminal tribunals for the crime, in order that the justice of the country may first be satisfied, and after this the way is open for the injured party to seek his civil redress. It may be remarked in passing, that this doctrine has never been recognized in this country. (Per Parker, C. J., 15 Mass. R. 336.) And in this state it has been provided by statute, that the right of action of a party injured by a felony, shall not be in any way affected or impaired by the felony. (2 R. S. 292, § 2.)

No such reason as the one above stated for the rule, it may be added, is suggested by Lord Ellenborough, although the case before him was one in which it would have been pertinent to have alluded to this peculiar feature of the ancient jurisprudence of the country; but he lays down the broad proposition that in a civil court, the death of a human being cannot be complained of as an injury. If it was necessary at this day to give a reason for this doctrine, I should think it more natural and obvious to refer to the old maxim which has obtained from the earliest days of the common law: “ Actio personalis moritur cum persona.” In a case which arose in England under the statute of 9 and 10 Victoria, known as Lord Den-man’s act, at the Derbyshire assizes, before Baron Parker, that learned judge., in summing up to the jury, remarked that until this act, compensation could not be recovered for the death of an individual, the ancient common law maxim being,” he said, that the value of life was so great, as to be incapable of being estimated by money.” This admits the existence of the rule laid down by Lord Ellenborough, but it is the first time, so far as I am aware, that such a reason has been suggested for it—a reason, it strikes me, much more fanciful than sound, since there are many wrongs, for the redress of which an action is given, but which the instinctive sense of mankind declares are incapable of being measured by any pecuniary standard which can do more than approach to a compensation.

But without seeking further for the reason on which the rule is founded, it is sufficient for the present purpose, that the rule has long existed in England, and were other proof wanting, the fact is evidenced in the strongest manner by the existence of the statute of 9 and 10 Victoria, before alluded to, and by the recital in the first section, Whereas, no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such cases should be answerable in damages,” &c. So good a lawyer as he who drafted this act, would not have put such a proposition in the shape of a legal enactment, nor the parliament of England engaged in a work of manifest supererogation, unless it had been true 'that by the law of the land, a's thus far expounded by its authorities, Ancient, constant and modern,” in the words of Coke, no remedy whatever existed for the wrong for which it was the purpose of the act to provide a remedy.

It can scarcely'be necessary to review at any length the cases in this country, which have affirmed the same doctrine. They will be found, with a single exception, I think, to follow the same rule, deriving it indeed from the same source, but affirming in the same manner, its binding authority. The case of Carey v. Berkshire Rail Road Company, (1 Cush. 475,) was an action on the case to recover by a wife, for the loss of her husband by the carelessness of the defendant’s agents. It was not founded on the Massachusetts statute, which had provided a remedy by indictment, and fine, which was bestowed upon the widow and heirs for their indemnity, but was a common law action, seeking a private remedy solely. The court held that the action could not be maintained, and they cite the case of Baker v. Bolton, and the principle laid down by Lord Ellenborough, with approbation, and add ; “ Such, we cannot doubt, is the doctrine of the common law, and it is decisive against the maintenance of this action.” In Hallenbeck v. Berkshire Rail Road Co., (9 Cush. 480,) Ch. J. Shaw incidentally alludes to the same doctrine, and says, " It is perfectly well settled, as a rule of common law, that all rights of action for injury to a person, die with the person, and it was the obvious purpose of the statute to reverse this rule, and provide that the right of action should survive” in the cases to which the statute was made to extend. (See also 9 Gushing, 109.) Expressions of a similar character occur incidentally in other reported cases, recognizing either expressly or by implication, the same rule. Thus in Safford v. Drew, (3 Duer, 637,) Hoffman, J., says: “ In the first place, it is to be noticed that by the rules of the common law, before the statute, no action could be maintained by the personal representatives of a deceased person, for loss or damage resulting from his death.” So, also, in Quin v. Moore, (15 N. Y. Rep. 436,) Comstock, J., speaking of the case of the mother deprived of the services of her son, by the act which destroyed his life, says: “ The common law gave no action for this injury. The statute, probably with greater justice, declares a different principle, and holds the wrongdoer liable to make compensation.” But it is needless to multiply citations, since the cases, wherever they allude to this rule, directly or by implication, hold the same language. It may be added, however, that in Kentucky, Ohio and Pennsylvania, decisions have been made either affirming explicitly the same doctrine, or recognizing the unquestioned existence of the common law rule. (See Edson v. Lex. and Frank. R. Road Co., 14 B. Mon. 204; Wesley v. C. H. and D. R. R. Co., 1 Handy, 481, and Miller v. Umbehoven, 1 Serg. & Rawle, 31.)

The case of Plummer v. Webb, &c., cited from Ware’s ¡Reports, arising in the United States district court of Maine, to sustain the opposite view, is not in conflict with the common law rule so well established, and recognized so often. It was an action brought by the plaintiff, as the father of a boy who had been cruelly beaten by the defendants, the captain and mates of a ship, the death of the child having resulted from the long continued ill usage he had received. The action was founded on the assault and battery, and alleged loss of service, in consequence of the .ill treatment. All the court attempt to decide is, that the remedy for the loss of service did not abate by the death of the child; but this cause of action survived to the parent. The action was not to recover for the death of the child per se, but for the loss of service, although if the fact had been established, the death might perhaps have been taken into account, by way of enhancing the damages. It appeared, however, in the case, that the boy had been bound to the service of the captain, and thus the relation on which alone the action was grounded, not existing between the plaintiff and the child, the court ruled that the action could not be sustained. It will be seen, therefore, it is no authority to sustain the principle for which it is cited, and whatever fell from the court on this point was incidental, and not necessary to the decision that was really made in the case.

The only exception then, if exception it can be called, to this uniform current of decisions, is the case of Ford v. Monroe, (20 Wend. 210.) As it stands, the case is certainly anomalous, sustained by no precedent, and in plain conflict with all previous authority. As the case is stated, the plaintiff was allowed to recover damages for the death of his son, of ten years of age, who was run over and killed by the servant of the defendant, such damages being, among other things, alleged to be the loss of service of the son for upwards often years, and the sickness of the plaintiff’s wife in consequence of the occurrence. What other proof of damage was given does not appear; but as the jury only gave a verdict of $200,1 should infer that the court must have charged on the subject of these special damages claimed, with some hesitation. However that may be, when the case came into the supreme court, the main ground relied upon to obtain a new trial was, that the relation of master and servant was not established, and this the court pass upon as the question in the case, and all they say upon the subject of damages, is in four lines, and is merely to. the effect that as they are specially laid, and were proved to have been the consequence of the principal act, they came within the well settled rule of special damages; which amounts to little more than saying that they were special, because they were specially laid—a truism that it required no great effort of legal learning to announce. A case thus presented, and thus disposed of, can hardly be accepted as an authority which shall overthrow a principle of the common law, so long settled and acquiesced in as to have become quite elementary. Concerning this case, it is well remarked by Judge Metcalf, in 1 Gush. 479, that no question was there raised concerning the legal rights of the plaintiff to recover damages caused by the killing of his son. For aught that appears, that point was assumed and passed sub silentio, both at the trial and in bank.” There is also an incidental reference to this case by Judge Bronson in Pack v. The Mayor of New York, (3 Comst. 493,) where ci.ting it with an apparent dubitatur, he says: I have a strong impression that the father could recover nothing on account of the injury to the child, beyond the physician’s bill and the funeral expenses.”

I am constrained by these considerations, to reject the authority of this case, and abide by the common law rule, that an action by a husband for the loss of his wife by the careless and negligent act of a third party, can only be sustained where some period intervenes between the time of the injury and the time of dissolution, during which he could be said to have suffered the loss of her service and society, and incurred expense and underwent anxiety and distress on her account. Where death is the concomitant of the collision, and life departs at the instant the shock is received, no action for loss of service can he sustained, because there is no time during her life, when it can be said- that the husband has lost the service and society of his wife in consequence of the injury complained of. This may be" thought a narrow ground on which to place any right of recovery, but there is no other on which the common law rule can be overcome, which declares that the mere death of a human being cannot be “complained of as a civil injury, to be compensated in damages.

[Oneida Special, Term,

May 19, 1858.

Bacon, Justice.]

I should have been happy in this case to have arrived at a different conclusion, but the law will not bend to accommodate our private views; or gratify our personal desires. I have no alternative but to administer the law as I find it—no dispensation from its injunctions to stand by its-ancient landmarks. Non quieta movere, is a good maxim in jurisprudence, however much it may be disregarded in civil and political affairs.

There must be judgment for the defendant on the demurrer, with costs.

Note. On appeal by tlie plaintiff from the above decision, the same was, on argument, affirmed, at a general term of the court held at Syracuse, in January, 1859, and the above Opinion of Justice Bacon adopted as the opinion of the court. Present, Justices Pratt, W. F. Allen, MaUin and Bacon.  