2.—: Effect of a Party’s Death.

Effect of death of either party. Actio personalis moritur cum persona. We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. This maxim “is one of some antiquity, but its origin is obscure and post-classical”. Causes of action on a contract are quite as much “personal” in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties. A very similar rule existed in Roman law, with the modification that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be sued. Whether derived from a hasty following of the Roman rule or otherwise, the common law knew no such variations; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man’s estate, an impersonal abstraction represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be implied in the dictum, “If one doth a trespass to me, and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong”. Indeed, the survival of a cause of action was the exception in the earliest English law.

A barbarous rule. But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer’s estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there would be no hardship in his taking subject to all obligations, ex delicto as well as ex contractu, to which his testator was liable. Still less could the reversal of the rule be a just cause of complaint in the case of intestate succession. Then as to the right: it is supposed that personal injuries cause no damage to a man’s estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, presume it, in favour of the wrong-doer, so to be? Here one may almost say that omnia praesumuntur pro spoliatore. Personal wrongs, it is allowed, may “operate to the temporal injury” of the personal estate, but without express allegation the Court will not intend it, though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication. The burden should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions; of which presently.

Extension of the rule in Osborn v. Gillett. The rule has even been pushed to this extent, that the death of a human being cannot be a cause of action in a civil Court for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant’s death, it is held that the master’s right to compensation is gone. We must say it is so held, as the decision has not been overruled, or, that I know of, judicially questioned. But the dissent of Lord Bramwell is enough to throw doubt upon it. The previous authorities are inconclusive, and the reasoning of Lord Bramwell’s (then Baron Bramwell’s) judgment is, I submit, unanswerable on principle. At all events “actio personalis moritur cum persona” will not serve in this case. Here the person who dies is the servant; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate. But the master’s cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage; the two actions are independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected. It is alleged, indeed, that “the policy of the law refuses to recognize the interest of one person in the death of another”—a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money: in other words, because the compensation cannot be adequate there shall be no compensation at all. It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the Courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal.

Exceptions: Statutes of Ed. III. giving executors right of suit for trespasses. We now proceed to the exceptions. The first amendment was made as long ago as 1330, by the statute 4 Ed. III. c. 7, of which the English version runs thus:

Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.

The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators. It was held not to include injuries to the person or to the testator’s freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown.

Of Will. IV. as to injuries to property. Then by 3 & 4 Will. IV. c. 42 (ad 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death: and a man’s estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death “to another in respect of his property, real or personal.” In this latter case the action must be brought against the wrong-doer’s representatives within six months after they have entered on their office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy.

No right of action for damage to personal estate consequential on personal injury. Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that “where the cause of action is in substance an injury to the person,” an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property.

Lord Campbell’s Act: peculiar rights created by it. Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to imbecility by the negligence of a railway company’s servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell’s Act (9 & 10 Vict. c. 93, ad 1846), a statute extremely characteristic of English legislation. Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled “An Act for compensating the Families of Persons killed by Accidents”: it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but “for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused.” The action must be commenced within twelve calendar months after the death of the deceased person (s. 3). Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury. The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf.

By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell’s Act may sue in their own names.

Construction of Lord Campbell’s Act. The principal Act is inaccurately entitled to begin with (for to a lay reader “accidents” might seem to include inevitable accidents, and again, “accident” does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell’s Act to show that the deceased would not himself have sustained pecuniary loss. “The statute . . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle”. But “the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean”. It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages; nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction; they must show “a reasonable expectation of pecuniary benefit, as of right or otherwise,” had the deceased remained alive. But a legal right to receive benefit from him need not be shown. Thus, the fact that a grown-up son has been in the constant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times, is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person’s continuing in life, are not admissible.

Interests of survivors distinct. The interests conferred by the Act on the several beneficiaries are distinct. It is no answer to a claim on behalf of some of a man’s children who are left poorer that all his children, taken as an undivided class, have got the whole of his property.

The statutory cause of action is in substitution, not cumulative. It is said that the Act does not transfer to representatives the right of action which the person killed would have had, “but gives to the representative a totally new right of action on different principles”. Nevertheless the cause of action is so far the same that if a person who ultimately dies of injuries caused by wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell’s Act is not afterwards maintainable. For the injury sued on must, in the words of the Act, be “such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof”: and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do.

Scottish and American laws. In Scotland, as we have incidentally seen, the surviving kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell’s Act; but they differ considerably in details from that Act and from one another. The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England.

Right to follow property wrongfully taken or converted as against wrong-doer’s estate. In one class of cases there is a right to recover against a wrong-doer’s estate, notwithstanding the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxim has to prevail.

As Lord Mansfield stated the rule, “where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor”. Or, as Bowen L. J. has more fully expressed it, the cases under this head are those “in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys.” In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover property, the action does not die with the person, but “the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets” (by suing the personal representatives) “and recaptured by the rightful owner there.” But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer’s estate in the sense of being useful to him or saving him expense.

The rule limited to recovery of specific property or its value: Phillips v. Homfray. If A. wrongfully gets and carries away coal from a mine under B.’s land, and B. sues for the value of the coal and damages, and inquiries are directed, pending which A. dies, B. is entitled as against A.’s estate to the value of the coal wrongfully taken, but not to damages for the use of the passages through which the coal was carried out, nor for the injury to the mines or the surface of the ground consequent on A.’s workings.

Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner; B. sues A., and pending the action, and more than six months after its commencement, A. dies. B. has no cause of action against A.’s representatives, for there has been no specific benefit to A.’s estate, only a wrong for which B. might in A’.s lifetime have recovered unliquidated damages.

The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable. In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is “some beneficial property or value capable of being measured, followed, and recovered”. For the rest, the dicta of the late Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval.