author:
Christiancy J.
      Campbell J.

text:
    Lofus Hyatt v. Aaron H. Adams.

      Damages at common law, fot' death of human being. At the common law no civil action can he maintained for the death of a human being, caused by the wrongful act or negligence of another, or for damages suffered by any person by reason of such.death; but where death does not at once ensue, a person entitled to the services of the one injured, may recover for the loss accruing between the injury and the death, and such action is not barred by the death.

      Damages in favot' of husband for injuries to wife, prior to death: Mental suffering. In an action by the husband to recover damages for injuries not wilfully inflicted upon his wife during a surgical operation, and which resulted in her death: Held, that he was entitled to recover only for the actual damage caused to him by the injury, and which accrued prior to her death; and that he could have no action for his or her mental suffering, as such action must be restricted to the person who received the physical injury.

      Exemplary damages: Motive. Where in a case like this, the evidence shows no evil motive in the commission of the act, exemplary damages cannot be given by the jury; but they must be confined to such as are proven.

      Pleading and Evidence'. Damages. The declaration in this case alleged that plaintiff had incurred certain expenses resulting from the injury to his wife. Held, that in the absence of any proof, they could not be considered in the verdict.

      Evidence of mal-practice: Exclamations of pain. Evidence of exclamations of pain and suffering uttered by the deceased during and after the operation— some of them being in the absence of the defendant — are to be considered as original evidence of suffering, and admissible as bearing on the alleged malpractice of defendant; but they are not admissible for the purpose of aggravating the damages.

      Heard April 6th and 9th.

      Decided October 22nd.

    Error to St. Joseph Circuit.
    This was an action on the case to recover damages sustained by plaintiff by reason of mal-practice, and gross - negligence of defendant in the exercise of his profession as a surgeon, while in attendance upon plaintiff’s wife; and by reason of which she died.
    The declaration alleged the loss of service, and the comfort and society of plaintiff’s wife, his mental suffering, and the expenses attending her necessary care.
    The alleged errors are stated in the opinion.
    Judgment was rendered for the plaintiff below.

      Riley & Shipman, for plaintiff in error.
    1. The court erred in admitting the declarations of Lucinda Adams, during and after the operation. — 1 Greenl. Ev. §102; 6 East, 188; 8 Watts, 355; 7 Cush. 581; 7 B. & Aid. 90; 8 Bing. 376.
    2. Although a husband may bring an action jointly with his wife for an injury to her (if it does not result in her death), or if he is deprived of her company and assistance, he may also bring a separate action; yet the damages is a question of law as well as of fact in all such cases. — 2 Black. Com. 140. In all such cases the husband will be confined to his actual damages — 5 T. R. 359; 2 Greenl. Ev. § 253; 2 Hilliard on Torts, 586; 32 Maine, 586; 35 Id. 89; 1 Gill. (111.) 46; 20 Wend. 210; 3 Comst. 489; 2 Kern. 273; 4 Id. 310; 21 Gonn. 557 — and for the reason that the wife would have had a right of action if she had lived, and her representatives still have under our statute. 2 Gomp. L. Oh. 151; 24 Wend. 420; 4 Denio, 461; 15 N. Y. 419; 5. T. R. 359.
    3. In a civil court the death of a human being can not be complained of as an injury. — 1 Oampb. 493; 1 Gush. 475; 1 Hill, on Torts, 83 and N. (a.); 4 Allen, 55; 6 Louisiana, 495; 14 B. Monr. 204; 1 Handy, 481; 25 Gonn. 265.
    The plaintiff must be confined to the mere loss of service.
    Defendant is liable, if at all, to a suit from the representatives of the deceased, for the benefit of the next of ldn. — 2- Gomp. L. Ghap. 151.
    .This act is the same, in effect, as the 9th and 10th Victoria, called Lord CampbelV.s Act, which has been adopted in many of the states.. In such an action the real damages for the injury may come up.— Carey and Wife v. Berkshire R. R. Co. cited above; Bramberger v. Cleis, L. Reg. Aug. 1865; 15 N. Y. 423.

      H. F. Severens, for defendant in error.
    No question is, or can be raised, as to tbe right of the plaintiff to recover for the loss of service, comfort, and society of the wife, during the time she lived after the operation, if that loss resulted from the defendant’s mal-practice; and the declaration is carefully limited to the results occurring during her life time.
    That the husband has a legal interest in the wife’s services and society, cannot be doubted.
    The employment of the defendant to take the care and management of the plaintiff’s wife, and to remove the tumor, created a duty to the plaintiff on the part of the defendant, to bring and apply a reasonable degree of skill; and for his failure to do so, and the resulting injury, he is legally responsible to his employer.
    The principle rests upon solid grounds of reason and of law.
    For the damages claimed in the declaration, the husband must sue alone. This is the rule of the common law. — 1 Chit, on PI. 73; 2 Id. 642, ’3, ’4 and notes, 865; 18 Johns. 443; 12 How. Pr. 322; Ware, 69; 14 Ind. 595.
    Assuming that at common law the death of a human being cannot be made the ground of legal action, it is to be observed that the cases go no further than to hold that when the death immediately follows the injury, no action can be maintained. Where an interval happens between the injury and the death, the party may recover. — 1 Camjpb. 493; 28 Barb. 9; 1 Cush. 475.
    Let us now proceed to the examination of the particular questions arising upon the record.
    1. It is assigned as error that the court admitted that portion of the evidence of Aaron H. Adams, which detailed the exclamations and expressions of suffering of his wife after the operation.

      It was material for the jury to know the results of the operation, and the effects produced by it, as shown by the subsequent condition of the patient. The exclamations of pain and complaints of suffering of a person whose condition is the subject of inquiry, are admissible as original and competent evidence of the fact to be proved. — 1 Greenl. on Ev. § 102; 1 Phill. on Ev. ( O. H. and Ediv. Ed) 182; 28 N. Y. 345; 32 Id. 597; 41 N. S. 135; 32 Vt. 591; 7 Gush. 581; 15 B. Mon. 236; 26 Ga. 171; 30 Ala. 562; 33 Id. 529.
    The only exception is, that what is merely narrative of past events, is not admissible except perhaps when made to a medical adviser for the purpose of prescription.— Bacon vs. Charlton, supra; Allen v. Van Cleave, supra.

    2. Gross negligence, or a failure to bring and use a reasonable degree of skill in the exercise of defendant’s profession, would create a liability, and the damages must necessarily be determined by the jury in view of all the circumstances of the case.— 5 Denio, 213; 5 N. Y. 422; 6 Id. 233; 33 Id. 52; 20 Barb. 343; 27 Id. 512; 31 Id. 171; 2 Kern. 313; 3 Beld. 266; 4 Id. 37; 43 N. H. 580; 11 Wis. 160; 6 Clarke la. 191; 9 Ind. 528; 1 N. J. 597; 19 Ohio, 337.
    3 To entitle the plaintiff to recover for his mental agony during the three days prior to his wife’s death, he need not show that the injury was wilful. Irrespective of exemplary or punitory damages, the plaintiff was entitled to recover for his mental suffering under the most restricted rule of damages to be found in the books, provided the injury, in the language of the court, “was the result of the defendant’s want of ordinary, average care and skill.” — 1 Campb. 493; 3 Esp. 19; Sedg. on Bam. 653 ; 1 Cush. 451; 9 Allen, 478; 13 Mich. 63.
    The plaintiff was entitled to damages. — Bedg. on Dam. 38 (marg. p.)', 13 la. 128; 4 Greene la. 555; 27 Conn.
      293; 13 Cal. 599; 10 N. H. 130; 36 Id. 9; 31 Miss. 156; 36 Id. 660; 22 Conn. 290; 29 Id. 496; 3 Met. (Ky.) 311.
    The failure to exercise good faith, gross negligence, falling short of positive wilfulness, is equally a ground for exemplary damages as wilfulness. In addition to the above authorities, see 11 Mich. 542.
   Christiancy J.

The plaintiff in error (defendant below), was a physician employed by Adams (plaintiff below), to remove a tumor from the uterus of his wife. The wife died three days after the operation; and as the plaintiff below alleges, and the evidence tends to show, the death waii produced by mal-practice — the want of proper skill and cafe in performing the operation. And it is not too much to say that the tendency of the evidence on the part of the plaintiff below, was to show such a total want of skill, and such a degree of carelessness, as would in law make the defendant below guilty of manslaughter.

The action is not brought under the statute, but at common law; the plaintiff in his individual capacity claiming damages, first, for the loss of the services and society of his wife during the three days prior to her death; second, for expenses incurred in nursing and taking care of her during the same period; and, third, for the agony and distress of mind suffered by him in consequence of the injury, “from thence hitherto,” etc.

There was no proper evidence of any expenses incurred.

The only proof of pecuniary damages was the loss of service, shown to be worth fifty cents per day, or one dollar and fifty cents for the three days.

The first question for our consideration is, whether the action can be maintained by the husband for the damages in question, at common law.

It is admitted on all hands, and cannot be denied that, at common law, no civil action could be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for any damages suffered by any person in consequence of such death. — Carey v. Berkshire R. R. Co. 1 Cush. 475; Kearney v. R. R. Co. 9 Id. 109; Hollenbeck v. R. R. Co. Id. 480; Whitford v. Panama R. R. Co. 23 N. Y. 465 ; Dickins v. R. R. Co. Id. 158; Ohio and M. R. R. Co. v. Tindall, 13 Ind. 366; Eden v. L. & T. R. R. Co. 14 B. Monroe, 204; Green v. Hudson R. R. Co. 28 Barb. 9.

But it is claimed that this is the whole extent of the common law rule, and that it does not forbid an action in such case for damages accruing to parties other than the deceased, prior to and not in consequence of the death. Whether the rule is subject to this qualification, or whether it does not prohibit any action for the act or negligence causing the death, and thus apply equally to the damages before and after the death, is the main question here.

By the earliest authorities upon this point, those in which so far as can now be ascertained the rule was first laid down and established, it applied equally to damages accruing prior to the death, and to those which accrued subsequently and in consequence of it; as it forbade any action for the act or negligence which produced death. And the only reason''' given in those authorities for the rule is co-extensive with the rule as thus applied — the merger of the private action in the felony —that by the death, the act or negligence producing it has now become an offense to the Crown, being converted into a felony; and this hath drowned the particular offense or private wrong, and the action is thereby lost. — Higgins v. Batcher, Yelv. 89; Brownlow, 205; Cooper v. Witham and wife, Sid. 375; 1 Levinz, 247.

But this reason thus nakedly stated, resting upon artificial distinction rather than any real principle, and savoring more of the verbal logic of the schoolmen than of justice or common sense, has not proved satisfactory to some of the courts and the text-writers of this country; and it has been suggested, and sometimes asserted without qualification, that the only true reason for the rule established by the foregoing authorities, was the forfeiture which took place upon conviction for felony: all the property of the felon (as well as his life) being forfeited to the Crown, and an action for this reason being useless. And as no such forfeiture takes place in this country upon conviction for felony, it has been urged that there is no foundation here for the rule; that the sole reason of the rule having failed, the rule itself should cease. And if it were clear that this was the only reason for the rule, I should agree in the conclusion.

But this argument, and this conclusion, are altogether too broad for those who admit, as all now must admit, that the common law, both in this country and in England, still excludes all damages accruing in consequence of the death, whether the means producing the death were felonious or not. And the argument, if valid at all, would go to the extent of sustaining the action for the death, or the damages resulting from it, as well as for those accruing beforel Merger, whether resting on the ground of forfeiture or not, furnishes no ground for this distinction. Forfeiture does not seem to have been assigned in England as the reason of the merger, nor the reason for the rule' excluding an action in cases of felony — at least by any of the decisions which established and settled the rule. But this idea seems to have grown up in this country only because it was thought it would have furnished a better ground for the rule denying the action, than the naked ground of merger.

But there is still another objection to resting the common law rule (forbidding the action) upon the forfeiture which takes place in felony — an objection, it will be seen, which tends equally to show that merger was not the ground, or at least the only ground of the rule. If it rested solely upon the ground of merger, or- that- of forfeiture, Or both combined, it would be very difficult to discover any ground for a distinction between the different classes of felonies to wbicli the forfeiture was a common incident. But felonious homicide, and other felonies, should be placed upon the same ground. I do not assert that any such distinction has been maintained in England . in reference to the rule we are now discussing. My own opinion is that such a distinction between felonies has not been maintained in the English authorities. But those who assign merger or forfeiture as the real ground of the common law rule (forbidding an action), as the rule has been understood and acted upon in England in modern times, will be under the necessity of showing the existence of such a distinction between felonious homicide and other felonies already noticed; since it is quite clear that, not long after the cases to which I have alluded, the doctrine of strict merger was abandoned as to other felonies, without any intimation of an exception of felonious homicide, and it became and still remains well settled that after a trial and conviction or acquittal for the felony, an action may be maintained for the civil injury. See 1 Latch, 144; Styles, 347; 1 Hale’s P. C. 546; Crosby v. Leng, 12 East, 409, 412, 413; Peer v. Humphrey, 2 Ad. & Ellis, 495; Stone v. Marsh, 6 B. & C. 551; White v. Spettigue, 13 M. & W. 603.

This is but a suspension of the civil remedy until the offender has been tried for the public offense; and it is based upon grounds of public policy, making it the interest of parties who have suffered the private injury to prosecute the offender, to perform their duties to the public, before they seek private redress. See Crosby v. Leng, Supra; Styles, 346; Stone v. Marsh, Supra; and 4 T. R. 332, 333. This suspension of the remedy, however, is still generally spoken of in England under the old designation of merger, and some confusion seems to have been the result; though the courts have explained it by saying it is only a merger for the time being, till the offender has been tried and convicted or acquitted of the public offense. It is difficult to see' why the reason given for this suspension does not apply as strongly to felonious homicide as to other felonies, or why in the one case the civil action should be held to be absolutely merged in the felony (or cut off by forfeiture), and in the other only suspended; and I have not been able to find any English case which establishes or authorizes such a distinction. In one case in Kentucky such a distinction seems to be asserted to 'have existed at common law. — Eden v. L. & T. R. R. Co. 14 B. Mon. 204. But I find nothing in the English cases to warrant the assertion, except the very unsatisfactory inference to be drawn from the fact that no decision is found in which this doctrine of suspension has been affirmatively applied to a case of felonious homicide.

But if the doctrine of suspension of the remedy be applicable to a case of felonious homicide as well as to other felonies, as I think it is in the English law, it will not any more than that of merger or forfeiture furnish any satisfactory explanation of the distinction between damages accruing prior or subsequent to the death; though if applicable here as in England, it would defeat the present action as effectually as merger or forfeiture, as it does not appear that the defendant has been prosecuted or tried for the offense.

But whatever considerations of public policy may have existed, or may now exist in England, requiring the offender to be tried and convicted or acquitted on the criminal charge, before the civil action is allowed, I do not think that such considerations exist here, or at least to such an extent as to justify the Suspension of the civil remedy, and I think the general understanding of the courts and the profession, in this state, has been that the civil remedy was in no way dependent upon the criminal prosecution.

Public prosecutions for offenses are not in this country, as in England, left to be instituted or conducted by private parties, and at their own risk as to costs. We have public prosecutors legally bound to institute and conduct such prosecutions, and to see that grave crimes do not go unpunished — see Boston, etc., v. Dana, 1 Gray, 83, where this question is fully discussed, and the English rule of suspension of the remedy denied to be applicable in Massachusetts— and this seems to be the more general American doctrine. And notwithstanding the doubt expressed by Mr. Bishop (1 BisJi. Gr. L. §§337 and 338), I am entirely satisfied with the reasoning of the case last cited.

But as none of the reasons already mentioned have seemed satisfactory for the common law rule (prohibiting an action for the death of a human being, or for the injury which caused it, whichever may be found to be the extent of the rule), another reason has been assigned which would undoubtedly, have been a sound and sufficient reason, so far as it extends. This is the common law maxim: “actiopersonalis moritur cum persona” (see per Bacon J. in Green v. Hudson River R. R. Co. 28 Barb. 9).

This would furnish an adequate reason why no action could be brought by personal representatives, or others, for such damages as the deceased might have recovered for the injury, if death had not ensued, as the action for such damages would not survive. But this reason could have no application whatever to an action brought by a master for loss of service of his apprentice, or by a husband for those of his wife'; since in these cases the cause of action could never have been vested in the servant or the wife, and could not be lost by the death. There can, therefore, be no such question of survivorship in an action like the present.

And if this were the true reason of the rule, there would be no reason why the master or the husband should not be allowed to recover damages for the loss of service after, as well as before the death of the wife or apprentice.

So far as I have been able to discover, there is but one English case which expressly holds that at common law an action for the loss of services of a wife killed by the wrongful act or negligence of the defendant can be maintained even for the loss of services up to the time of the death, or which intimates any distinction between the damages accruing before and after the death. This is the nisi prius case of Baker v. Bolton, before Lord Ellenlorough in 1807. The case is very briefly reported; the form of action is not stated. It was an action against the defendants as proprietors of a stage coach, on the top of which the plaintiff and his wife were traveling, when it was overturned, whereby the plaintiff himself was much bruised, and his wife so severely hurt that she died about a month after. The declaration, besides other special damages, claimed damages for the loss of the comfort, fellowship and assistance of his wife. Lord Ellenlorough told the jury “they could only take into consideration the bruises which the plaintiff himself had sustained, 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 to the moment of her dissolution.” “In a civil court, the death of a human being could not be complained of as an injury, and the damages as to the plaintiff’s wife must stop with the period of her existence.” No authority is cited, no reason given, nor anything showing the cause of the accident or the degree of negligence; yet the assertion that “in a civil court the death of a human being cannot be complained of as an injury,” seems to be now universally admitted both in England and in this country as the settled rule of the common law.. The case of Ford v. Monroe, 20. Wend. 210 (the only one, so far as I am aware, holding a contrary doctrine), being very generally admitted not to be law. See per Metcalf J. 1 Oush. 478-9. The action (in Baker v. Bolton) . being against the pixprietors, it is not at all probable that the death had been caused in a manner which would render them guilty of felony, and if the driver was thus guilty (which is not likely), this would not merge, or even suspend the action against the proprietors.— Gibson v. Minet, 1 H. Black. 612; White v. Spetigan, 13 M. & S. 603. It is quite evident, therefore, I think, that Lord Mlenborough, in announcing the rule, must have rested it upon some other ground than any of those already discussed — upon some ground wholly irrespective of the question whether the killing was felonious or not, and as the action was by the husband for the damages he had suffered, there could have been no question of survivorship. As no reason is given, and the previous decisions, so far as I have been able to discover, are silent as to any reason for the rule where the means of the death were not felonious, we are left somewhat to conjecture, for the reason of a rule admitted to be a settled rule of the com-mon law, as well when the killing is not felonious as when it is.

For myself, I think — and the form of expression in which the principle is announced by Lord Mlenborough would indicate that such was his opinion — that the reason of the rule is to be found in that natural and almost universal repugnance among enlightened nations, to setting a price upon human life, or any attempt to estimate its value by a pecuniary standard, a repugnance which seems to have been strong and prevalent among nations in proportion as they have been or become more enlightened and refined, and especially so, where the Christian religion has exercised its most beneficent influence, and where human life has been held most sacred. Among barbarous and half civilized nations, it has been common to find a fixed and prescribed standard of value or compensation for human life, which is often found to be carefully graduated by the relative importance of the position in the social scale which the deceased may have occupied. While this has been the natural result, it has at the same time been, to some extent, the cause of their inhuman customs, their barbarous manners and social degradation, and of the comparatively low estimate in which human life has been held among them.

To the cultivated and enlightened mind, looking at human life in the light of the Christian religion as sacred, the idea of compensating its loss in money is revolting; and it can only become reconciled to such an idea by the strong-necessity which has grown out of the new modes of travel and business in modern times, by which great numbers are compelled to trust their lives to the skill and vigilance of the servants of corporations, and others in similar positions of responsibility — a state of things which seemed to call for a remedy which should make railroad corporations, steamboat managers, and parties to whom others are compelled to trust for safety, more sensible of their responsibilities, and more careful to secure a high degree of vigilance in protecting the lives entrusted to their care, and at the same time afford relief for cases of great individual hardship, which might otherwise be suffered by those dependent upon the person whose life may be lost. Statutes of this kind have been passed in England and in many of the states of the Union, which may prove beneficial in the way above suggested. But there is still some reason to fear that, like many other human laws, their good effects will be found not unmixed with some incidental evils. The greatest caution has been, and will continue to be required on the part of courts, to prevent the best and most benevolent feelings of our nature .from clouding the judgments of jurors and prompting them to most intemperate verdicts, in the vain endeavor to give a money compensation for that which, in its very nature, is incapable of valuation by any such standard. And it will be fortunate in the future if it shall be found that habituating the public mind to the idea of pecuniary compensation for human life has not tended to weaken its safeguards, and to render it less sacred in the popular estimation.

This natural repugnance to which I have alluded, if not the original reason of the rule in question, would at least, in my opinion, have been a much better and sounder reason than the reasons which have been given in the eases, or than any consideration connected with the public offense, its grade, or its prosecution; and would -at the same time afford an equally satisfactory reason for denying the action for the death or damages resulting from it in cases not felonious, where it 'seems to be equally established.

And I am by no means satisfied that this is not the only sound and satisfactory basis upon Avhieh the common law rule could have been sustained in England, in modern times.

Based upon this ground, the rule would not prevent an action for damages accruing to a party other than the person injured, up to the time of the death, though caused by the act or negligence which produced it; while it would exclude all which might have accrued in consequence of the death. Such seems to have been Lord JEllenborough’s understanding of the effect of the rule, as applied by him in Baker v. Bolton.

From the best examination I have been able to make of the English authorities, I think it is at least very questionable whether, for more than a century past, there has been any recognized legal principle which would have prevented the recovery of damages in such a case accruing prior to the death, to parties other than the deceased. If there has been any such obstacle, it must have been the doctrine of suspension of the remedy in cases of felony until trial of the offense which still goes by the old name of merger in the felony.

The preamble to the statute (9 and 10 Vict. ch. 93), might, upon a first reading, seem to conflict with this view. “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 expedient that the wrongdoer in such cases should be answerable in damages.” This might, on first view, if we adhere strictly to the letter, seem to declare that no action could be maintained by any person for damages occasioned by the injury which caused the death, though accruing before it, as it declares that “no action is now maintainable against the person who caused the death.” This, however, would be a narrow construction if confined to the preamble alone. But the preamble must be construed with reference to the enacting part, as intended to recite the defect which it was intended to cure by the statute. The whole substance of the enacting part, so far as it bears upon this point, is, “that whenever the death of a person shall be caused by a wrongful act, neglect or default, which would, if death had not ensued, have entitled the party injured” (meaning, as subsequently appears, the deceased), “ to maintain an action to recover damages in respect thereof, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured shall have been caused under such circumstances as amount, in law, to a felony; such action to be brought within twelve calendar months after such death, by and in the name ’of the executor or administrator of the person deceased, and to be for the benefit of^ the wife, husband, parent or child of the person whose death shall have been so caused. And in such action the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties respectively for whose use such action shall be brought.” Now the whole scope of this enactment is confined to the recovery of damages “ resulting from such death.” It has no application to any cause of action or damages accruing prior thereto; and the preamble must be construed as co -extensive with this enactment, and intended to point out the only deficiency which needed a remedy, or was intended to be remedied. I do not regard the clause “notwithstanding the death,” etc., “shall have been caused under such circumstances as amount in law to a felony,” as referring at all to the old doctrine of strict merger, which I thinlc had been wholly abandoned; but I regard it as inserted for abundant caution, and to remove any doubts as to the effect of the authorities. It must be remembered that this statute was needed, and intended as much for cases not felonious as for those ■ which were; and the clause in question would seem to be intended as a declaration that both classes should be placed upon the same ground, whatever doubts might otherwise have been entertained of this intention, in consequence of the previous state of the law. But at most this clause must be regarded as intended to meet the doctrine of merger in the shape it had assumed at the time — which was that of suspension instead of merger, though still called by the old name, — -and this, as I have already stated, I do not think has any force in this state.

The same clause in reference to felony is found in our own statute (Comp. L. §§ 5003 and 1998). But-this (like the whole section regarding the right of action) is copied literally from the English statute, and can have little effect as a declaration of the previous state of the law here upon, this particular doctrine of merger, when we know the little care taken by legislative bodies in copying statutes, to eliminate unnecessary clauses.

Upon principles of justice and common sense, I think the plaintiff, in a case like the present, should be allowed to recover his actual damages caused by the injury and accruing prior to and not in consequence of the death; and I can discover no substantial objection to such recovery in any recognized principle of the common law applicable here.

Our statute ( Oomp. L. § § 5003, 5004) does not extend to the case, and has no application to the damages here in question, as all the damages which could be recovered for the injury, would be for the benefit of the next of kin of the wife, of whom the husband is not one (Dickins v. N. Y. C. R. R. Co. 23 N. Y. 158), and the damages to which the statute extends, are only those resulting from the death. For these no action could be maintained at common law.

The injustice of denying the action for damages accruing up to the time of the death, may not be very glaring in the present case, in which the actual damages proved are exceedingly trivial. But the action cannot be denied upon any principle which would not be liable to do great injustice in other cases which may arise. Suppose the wife had lingered for a year or more and then died, in consequence of the injury, and the husband in the mean time had been put to thousands of dollars of expense, in physicians’ bills, medicines, nursing and attendance. No one can doubt that at any time while she was yet living, the husband’s right of action would have been perfect as to the damages accrued up to the time of the action. But she dies the next day after the action is instituted; does his action abate by her death? Has he lost his right, and must he now be denied any compensation for the injury, because it has proved fatal to her ? If so, it seems to me a more substantial reason should be shown for this denial of justice than any I have yet been able to discover. I therefore agree entirely with the Supreme Court of Indiana, in Long v. Morrison, 14 Ind. 595, that the husband’s action which had previously vested, is not extinguished by the subseqent death. See also Green v. Hudson River R. R. Co. 28 Barb. 9; Peck v. Mayor, 3 N. Y. 493; Eden v. L. and T. R. R. Co. 14 B. Monroe, 204; and Whitford v. Panama R. R. Co. 23 N. Y. 479, 480.

The result at which I have arrived renders it necessary to notice some other questions raised upon the trial.

If the injury was not wilful on the part of the defendant, but merely the result of his want of ordinary average care and shill in his profession, was the plaintiff entitled to recover for his own mental agony on account of his wife’s sufferings for the three days prior to the death? This is the form in which the question is presented: the judge having charged the affirmative. This question is nearly allied to that of exemplary damages which I shall presently notice, aq,d does not call for an opinion upon the rule which should be applied to a case where the injury has been wilful; and upon this we express none.

Lord Elleborough, in Baker v. Bolton, above cited, seems to have permitted the plaintiff’s distress of mind on account of the wife’s sufferings up to the time of her death, to be considered by the jury as an item of damages. This was at nisi prius, and the case does not appear to have come before the court in Toanc, and the question is whether this view can be sustained.

Upon principle there are some difficulties in the way of sustaining an action upon such grounds in a case like the present. In the first place it is manifest that the chief cause of the plaintiff’s distress of mind must have been the death of his wife in which the injury resulted, rather than the pain she suffered during the operation, and prior to her death; and it would be very difficult for a jury to apportion the jffaintiff’s mental agony, or to determine with any thing like accuracy how much of it was attributable to one of these causes, and how much the other, and practically it is to be feared that no such distinction would be attempted in the verdict.

I do not claim that this consideration is conclusive of the question, but that it is entitled to some weight.

But there is a more serious objection than this. If the plaintiff has a right to sustain an action for his distress of mind on account of his wife’s suffering, upon what principle can the law refuse a like action in behalf of the father, mother, brother or sister of the deceased, who may have sustained as much mental agony on the same account as the husband? And if these, who are more nearly related, and may have suffered more, why may not her more distant relatives sustain an action on the same principle for their respective portions of mental agony according to their degrees of relationship ? Or if the amount of recovery is to be governed by the amount of actual suffering of the plaintiff as shown by the proof, what is to prevent an action by any sympathizing neighbor who has witnessed the wife’s agony, and perhaps suffered just as keenly from it as the husband or relative ? If the principle be once admitted, who shall prescribe its limits, and can any limits be prescribed which would not be purely arbitrary?

These considerations show the propriety and good sense of the rule which restricts the right of action for mental suffering to the person wrko has received the physical injury. Had the wife survived the injury, this right of action would have been hers, and neither the husband in his own right, nor any other person could have sustained an action for it; and her death does not transfer it to him. See Whitney v. Hitchcock, 4 Denio, 461; Richards v. Farnham, 13 Pick. 451.

The court below was requested to charge that “if the plaintiff shows himself entitled to maintain this action, and if from the evidence no evil motive be imputed to the defendant, then the rule of compensation is fixed by law, and it is not to be submitted to the discretion of the jury that in such a case exemplary damages are not allowable.”

The court gave the instruction with the following qualification: “As I have just said to you, so here I repeat the sentiment, that you are not empaneled to punish the defendant; but to establish justice and right between the parties, so far as your verdict may be capable of so doing.” And again, the court, in answer to a request of the plaintiff, charged, that “the jury should, if they find that gross negligence is established by the proof, or that the defendant failed, to bring and use a reasonable degree of skill, equal to the ordinary average of skill possessed by gentlemen of the same profession, award by their verdict such damages as, in their opinion in view of all the circumstances of the case, ought to be awarded against the defendant and in favor of tlie .plaintiff.” We think this charge, taken together, was erroneous. It left, and must have been understood by the jury to leave the whole subject entirely open to their unlimited discretion without any legal rule whatever to guide them.

This action for loss of services (at least where no evil motive or even gross negligence is shown) is one which in its very nature, would seem to contemplate the recovery of such actual damages only as should be shown by the proof, under the ordinary rules of evidence. It would seem to be designed for compensation of pecuniary loss only; leaving no room for merely speculative, discretionary, or exemplary damages. See Whitney v. Hitchcock, ub. sup.

It is not like the action on the case'for seduction, which stands upon peculiar reasons of its own, and where loss of service has grown to be almost as much a matter of fiction, as the loss and finding of the goods in trover.

The charge asked by the defendant below upon this point was correct, and should have been given without qualification. A ease can scarcely be imagined in which a specific charge could be more essential to the protection of the defendant’s legal rights, or in which a general charge, leaving law and fact to the discretion of the jury would be more lilcély to lead to an exorbitant verdict. The evidence in the case showed legal damages to the amount of one dollar and fifty cents. The verdict was for two thousand dollars.

The court also erred in not charging, without qualification, as requested by the defendant, that the plaintiff, not having offered any evidence of expenses incurred or paid in regard to his wife, in consequence of the alleged wrongful acts of the defendant, he cannot recover any damages for any such expenses alleged in his declaration, and in adding thereto the following: “But the jury must consider all the facts in the case under these instructions of the court, and award, if damages at all, such damages as in the judgment of the jury, ought to be awarded against the defendant and in favor of the plaintiff.” This seems to have been a bint to the jury that though they could not give the plaintiff expenses as such, because none were shown, yet, if they thought from the evidence upon other points that the case was rather a hard one for the plaintiff, they might accomplish the end sought by the plaintiff, by giving him damages in a general way, for such expenses as he might have suffered under the circumstances, but which he had not attempted to show.

The court did not err in admitting the evidence of exclamations of pain and suffering uttered by the deceased, and her complaints as to the nature of her suffering during and after the operation, though some of them were in the absence of the defendant. This is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their nature and extent can be ascertained. . Such exclamations and statements are therefore original evidence; but it was, of course, open to the defendant to show, or to raise an inference if he could, that they were feigned, or intended to deceive. They were clearly admissible as tending to show the malpractice of the defendant, though not for the purpose of aggravating the damages.

It may be that cases of this kind need a remedy which is not adequately given by the common law; but this is a question for the legislature and not for the courts.

It is quite evident that the real grievance which the plaintiff has sustained, is not that for which his action purports to be brought; but the loss of his wife for which no action lies at common law, nor in his behalf under the statute.

The judgment must be reversed, with costs, and a new trial awarded.

Martin Ch. J. and Cooley J. concurred.

Campbell J.

I think the exclamations of pain, and the remarks descriptive of her sensations which fell from Mrs. Adams during her suffering were admissible as part of the occurrences themselves; such evidence being the only accessible proofs of facts not open to the observation of others, and being the ordinary result of physical distress. But I think her statements concerning Hyatt are not admissible. Such charges are receivable under certain circumstances in criminal trials, as dying declarations, but not in other suits. No separate exception, however, was taken to the receipt of these specific complaints, and the question only becomes important, inasmuch as a new trial is granted on other grounds.

I think the court erred in the rule of damages. The right of a husband to sue for injuries to his wife only exists where he has thereby been deprived of her society or services, and it has been uniformly held that he could claim no redress for injured feelings, and that he could claim nothing for the loss he sustains by her death.

I have not been able to satisfy my mind as clearly as I should like upon the main question whether any action lies after the death of the wife, for the loss previously sustained. The reason given that a private action becomes merged in a felony, can not apply to cases where the defendant is not a felon, and can not, in most felonies (if not in all), apply where the felon has been prosecuted. The rule that no action will lie for death, while evidently an ancient and settled principle of law, must rest upon some other foundation. And I have been very strongly impressed with the belief, in the entire absence of precedents for suits like the present, that this maxim has been regarded in England as broad enough to prevent any suit for an injury which causes death. The case of Baker v. Bolton, is not distinctly in point, for there the husband had an unquestionable right to damages for the wrongful act, because it injured him as well as his wife; and circumstances of aggravation are in such actions very generally allowed their weight. That case has never been referred to by the English authorities, so far as I can find, as settling any doctrine, and there is no English precedent for any separate suit for damages such as were there allowed. And the preamble to Lord Campbell’s Act seems inconsistent with the idea that any such suit could be maintained.

There are, however, some American decisions which, without actually deciding this question, seem to go upon the supposition that the law is settled upon the distinction referred to by Lord Ellenborough, who was a more than usually accurate nisi prius judge. The adoption of statutes here and elsewhere removes any objection which might be raised against such actions as against public policy, and I concur with my brethren in sustaining this action, upon the sole ground that the reasoning in the decisions in this country all tends in that direction, and there are two cases which appear to be in point as adjudications.— Lynch v. Davis, 12 How. Pr. R. 322; Cross v. Guthery, 2 Root's R. 95. The rule is not an unreasonable one, and the obscurity which rests over the whole subject, renders it safe to follow any doctrine which has obtained favor in this country. If there had not been so general a disposition here to rest upon the distinction laid down in Baker v. Bolton, I should regard the absence of precedents (where causes of action must have been frequent), and the strong language of the preamble to the English statutes, as decisive against maintaining such suits.

As I do not think the present case necessarily presents the question how far a civil action is suspended by a felony, I withhold the expression of an opinion upon it.

Upon the other points I concur with my brother Christiancy, for the reasons given above.


source: Caselaw Access Project

author: The court

license: Public Domain

text:
    Wm. Albertson v. Jos. H. Edsall.

      Supersedeas: Justice's Court: Dissolution of Attachment. The statute authorizing Circuit Court Commissioners to dissolve an attachment applies equally to Justices’ and Circuit Courts.

      Heard October 33d.

      Decided October 23d.

    This was a motion for a supersedeas directed to Adolphos W. Burtt, a justice of the peace for Oakland county, to stay the further prosecution of a suit in attachment, pending before him.
    Suit by attachment was commenced in the Circuit Court, and certain valuable personal property was seized. On motion, the attachment was dissolved by the commissioner, and the sheriff was ordered to restore the property.
    The suit was then at once discontinued and new proceedings in attachment commenced immediately before a justice of the peace, for the same cause of action alleged at a smaller amount; and the same sheriff thereupon re-seized the same property.

      0. F. Wisner, for the motion,
    cited 9 Johns. 130; Cow. Tr. 487.

      T. Bomeyn, contra.
   The court

held that as the statute — 2 Comp. L. §4773 —authorizing a circuit court commissioner to dissolve an attachment applied equally to justice’s and circuit courts, the defendant in attachment had his appropriate remedy before a commissioner, and this court would not, therefore, entertain proceedings which were discretionary, and which were unnecessary to do justice.


author: The Court

text:
    The People ex rel. the Attorney of the United States for the Eastern District of Michigan v. the Judge of Probate of Monroe County.

      Mandamus: Claims of deceased persons. Mandamus will not lie against a Judge of Probate to compel birn to extend the time allowed for creditors to present their claims.

      Heard and decided, November 1st.

    Motion for mandamus.
    The petition set forth that the United States claimed a sum of $7,830.75 out of the estate of D. S. Bacon, deceased, by virtue of certain bonds given by him as one of the sureties for a defaulting United States marshal; that by the United States statutes (Bright. Digest, ¶. 18), and also by the statute of Michigan, such a claim had priority above all other claims upon the estate; that the will of the deceased was admitted to Probate, and commissioners were appointed on the second of July, 1866, and the time for the commissioners to receive claims, having been once extended, had expired on the 18th of July, 1867; that the Judge of Probate would neither extend the time under the statute of 1846 (2 Comp. L. §2921), nor examine the claim himself under the statute of 1867 (Bess. L. p. 147).

      A. Bussell, District Attorney, for relator,
    Contended that a mandatory construction must be given to the permissive language of both statutes, and that the words “may” and “may if he shall think proper” should be held tantamount to the word “shall,” when the public interests or individual rights require it, citing Supervisors v. United States, 4 Wall. 435 (and authorities cited), and moved for a mandamus compelling the Judge of Probate to extend the time.
   The Court

held that it being a matter within the discretion of the Judge of -Probate, mandamus would not lie.


author: Cooley J.

text:
    The People ex rel. Emile P. Benoit v. George Miller.

      Quo wai'ranto: Mm. The imposition of a fine for usurpation of a public office is in the discretion of the court. — # Comp. L. § 5812.

      Heard November 1st.

      Decided November 2d.

      Quo warranto.

    Tlie information in this case was filed to test the right of the defendant to hold the office of Treasurer for the county of Wayne.
    Defendant filed a demurrer and which was overruled — 15 Mich. 354 — whereupon he was allowed to plead, issuably.
    The case was tried by a jury and a verdict found for relator.
    The court was asked to impose a fine under the statute. 2 Qomp. L. § 5312.

      A. Pond, and Maynard■ & Meddaugh, for relator.

      P. Romeyn and Wm. Gray, for defendant.
   Cooley J.

The proceedings in this case have been as follows:

To an information against the defendant for usurping the office of County Treasurer of Wayne, he interposed a demurrer based upon supposed errors which did not in any way affect his substantial rights. The demurrer was overruled, but the defendant was allowed to plead issuably on showing merits. He filed an affidavit swearing to a good defense on the merits, and also setting forth specifically alleged fraudulent conduct and fraudulent voting on the part of officers and voters concerned in the election, sufficient to change the result, and on this affidavit was permitted to plead. His pleading resulted in two issues; one of law and one of fact. The issue of law was disposed of at the last term by a decision against the defendant who had fully conceded by his pleading that the relator had received the greatest number of votes. The conclusion of the law would be that the relator was duly elected. Nevertheless the case went to trial' before a jury on the issue of fact, where no attempt was made to prove any of the frauds alleged in the affidavit of merits, and the only point made on the trial on behalf of the defendant was one which it is conceded here would not affect the case. The jury rendered a verdict for the people, and the case is now before us for judgment.

Under these circumstances some of the court have doubted whether a fine ought not to be imposed upon the defendant as a part of the judgment; and whether a failure to impose it will not tend to encourage usurpations of office, with a view to the enjoyment of the emoluments of the office so long as the machinery of the courts can be made available to exclude the rightful claimant. But as this happens to be the first case of the kind in the state — all prior contests having been, so far as we are aware, in good faith — and as the defendant held the certificate of election, and the action of the canvassers is not now before us for consideration, the court will only render the customary judgment. The relator will have judgment upon the verdict, and that he is entitled to, and will recover costs of the three issues, including ordinary circuit court costs for the trial there.

The other justices concurred.


author: Campbell J.

text:
    Artemas Sigler v. George W. Platt et al.

      Assumpsit: Sealed contracts. Under § 5861, subdivision h, Compiled Laws, all actions of assumpsit, on sealed, as well as other contracts, are required to be brought within sis years.

      Partnership debts: Separate composition: Statute of limitations. Where suit was brought on a special sealed agreement, whereby one partner authorized the other to make a separate composition with creditors on his own behalf, and promised to pay such balance as he should not pay or secure to them, payments thereafter made by the latter, upon his composition arrangement, were held inadmissible to keep alive the liability of the defendant on his special undertaking, and take it out of the statute.
    The defendant’s liability on the special agreement was sole and not joint, and he could not be held responsible for any subsequent acts or admissions not authorized by himself.

      Heard October 16th.

      Decided November 2nd.

    Error to Lenawee Circuit.
    This was an action of assumpsit brought to recover the balance of certain unpaid partnership claims, according to tbe terms of tbe following written instrument:
    “I, Artemas Sigler, one of the members of the late firm of Sigler & Gillett, at Adrian, Michigan, hereby agree and consent that Augustus B. Gillett, the other member of said firm, may compound and arrange with the creditors of said firm for his own release from the debts thereof, as he shall he able; and I waive all objection to said compromise, and will not take any advantage thereof, nor consider myself released by said creditors’ acceptance of a proportion thereof from said Gillett, hut will hold myself liable on said demands over and above the amounts secured and paid on the same by said Gillett, as fully as though such compromise had not been effected.
    It being understood that whatever said Gillett pays or secures upon said demands, shall enure to my benefit as well as his own. Witness, my hand and seal,
    Seal. ' ARTEMAS SIGLER.
    October, 19, 1858.”
    Gillett made several payments upon said agreement, and was released by tbe creditors.
    On tbe trial, tlie court charged tbe jury tbat tbe effect of the said agreement signed by the defendant, of • October 19tb, 1858, was to make tbe payments made by Gillett tbe act of both parties; tbat said defendant thereby recognizes Gillett so far forth as bis agent, and it estops bim from denying that be was sucb, and from denying such effect of tbe payments made by bim. Tbat wben Gillett made a payment, the plaintiffs had a right to rest another six years, and then proceed against the defendant for the balance of the account, and such payment would save it from being-barred by the statute of limitations.
    Judgment was'rendered for plaintiff below.

      A. L. Millard, for plaintiff in error.
    The claim was barred by the statute of limitations.
    The payments made by Gillett upon the notes given by him for the amount which he agreed to pay upon the compromise with the plaintiffs, would not operate to save the remainder of the debt, which was, by agreement of all parties, assigned to Sigler, from the bar of the statute.
    The intention and effect of the compromise arrangement between the several parties, was to divide the debt and sever the liability of Sigler & Gillett, each being thereafter liable for a separate portion of the debt. Gillett gave his several notes, some of them with an endorser, for the amount agreed upon for his share, and on paying them he no longer had any liability for the remainder, for which Sigler was alone liable. The payments made by Gillett, after this arrangement, were not upon joint account, but for the purpose of discharging his several obligations.
    And even if he had made the payments directly on the copartnership indebtedness, being done after the dissolution of the partnership, it would not take the case out of the statute as against the other partner.— Story on Part. §§323, 324, 'et sup.

    A payment or acknowledgment of. a debt, in order to take a case out of the statute, must be an unequivocal and unqualified acknowledgment of the indebtedness, as then existing.— 1 Peters, 351.
    It cannot be claimed that the act of Gillett in paying his own notes was such an acknowledgment of the debt now sued for.

      It would not be such an acknowledgment even as to Q-illett. It was not a recognition, even by him, of the balance of the original indebtedness, not included in the notes. He was bound to pay these notes, whether the original indebtedness still subsisted or not.
    And if it would not amount to such acknowledgment as to G-illett, much less would it as to Sigler. «
    The written agreement of Sigler did not constitute Gillett the agent of the former. It did not, and was not intended to confer any authority or power on Gillett to do any thing for him.
    As a joint debtor he had authority to pay the debt, and this agreement gave him no additional power in that regard. The stipulation that what he paid or secured should enure to the benefit of both, was intended to secure a benefit to Sigler; not to authorize Gillett to charge him by any act or admission of his.
    There is a manifest difference between an authority for one to discharge, and to charge another. — 1 Peters, 351, (388) etsup.

    And if this stipulation meant no more than that whatever sum was paid by Gillett should operate to cancel the indebtedness as against Sigler, as well as Gillett, to the extent merely of the amount actually paid (though we do not think that was what it meant), then it was of no effect whatever, as such would be the effect of such payment without any such stipulation.
    Such a payment as this by Gillett (payment of part, with the express understanding that he was not to j>ay any more), is not an implied promise to pay the residue, but the reverse, and will not take a case out of the statute. — kMich. 508.

      Á. Pond, for defendant in error.
   Campbell J.

Suit was brought by Platt against Sigler to charge him individually, under a sealed instrument, whereby he agreed to hold himself personally liable, upon so much of certain partnership demands against himself, and one Augustus B. Gillett, as should not be secured or paid by Gillett, whom he authorized to compound with the creditors for his own release. This suit was to recover of Sigler the balance not paid by Gillett, and the declaration was a special one, founded on the agreement. Sigler pleaded the general issue, and relied also on the statute of limitations.

The principal questions arise under the statute of limitations. It is claimed by Sigler that payments made by Gillett, after the special agreement became operative, can not be regarded as payments which could operate to renew or keep alive any liability against any one but himself, and that more than six years having elapsed without any other recognition of liability, this action is barred. It is claimed on the other side that this agreement is not subject to the six years’ bar, and also that such payments are evidence against Sigler.

This is an -action of assumpsit upon an express agreement, and it is included within subdivision I of section 5361 of the Compiled Laws, requiring all actions of assumpsit to be brought within six years. The only question is, therefore, whether any payment or acknowledgment has saved the bar.

The purpose of the agreement sued upon was to sever the liabilities of the former partners, Gillett being allowed to settle separately with the creditors for his own benefit, and not for the benefit or on the account of Sigler. The creditors who dealt with him, in reliance on the agreement, did so expressly for his advantage. By accepting the proposal they made Sigler their sole debtor for his portion of the debt, whatever that might be. He never agreed to be liable alone for the whole, and the dealings with Gillett extinguished it as a joint claim. There is no authority given or implied which could justify any reliance on Gillett’s action under this contract as had in behalf of Sigler. The suit is not on the original claim, but on the latter’s private undertaking of October 19th, 1858, and any promise or recognition thereafter could only he valid when made by Sigler, or by his individual authority.

All evidence of G-illett’s subsequent acts was, therefore, immaterial, and incompetent to charge Sigler. There being no proof of any other acts of recognition, the claim appears to have become outlaAved. The court below erred in holding G-illett’s payments binding against Sigler so as to avoid the statutory bar.

As this will dispose of the case, we do not deem it necessary to consider the remaining errors assigned.

Judgment reversed, and a new trial granted.

The other justices concurred.


author: Cooley, J. Campbell J.

text:
    Wm. E. Kimball et al. v. Samuel B. Kimball.

      Witnesses: Representatives of deceased pej'son. The statute — Sess. L. 1861, p. 169 —forhicls parties, plaintiff or defendant, testifying against tbe representatives of a deceased person, when the matters, if true, must nave been equally within the knowledge of the deceased. Held, that tbe statute does not make the admissibility of the party’s testimony depend upon the degree of his knowledge; but it designs to prohibit his testifying at all upon matters which were within tbe knowledge of himself and tbe deceased alike. It precludes a party from putting in evidence, bis account of a transaction known to both, when tbe death of tbe opposite party prevents bis account being beard also.
    Whenever there is a fact bearing upon tbe issue which was not within the knowledge of tbe deceased, and the party testifies to it, bis right to give evidence to that fact does not entitle him to extend his testimony to other facts which were within the knowledge of the deceased.

      Held, farther, that the court, and not the witness, must decide as to the competency of the evidence in such cases.

      Statute of Limitations: Accounts Current. When the statute of limitations had commenced to run against a certain item in an account, hut which the plaintiff sought to save by showing credits in favor of the deceased, no account of which appeared to have been made by deceased: Held, that to prevent the statute from running against said item, there mnst have existed some credit given by deceased, on deal, within the six years prior to the death of defendant.

      Evidence: Receipt: Joint undertalcing: Statute of Limitations. The plaintiff sought to recover demands arising out of certain receipts given him hy the deceased who was his father; all dated fourteen years prior to his death.
    The first was signed by the deceased and another jointly, acknowledging the receipt of certain notes for collection, and agreeing to apply the proceeds on certain other notes, and to account for the balance.
    Held, that such receipt was inadmissible for the purpose of fixing any liability upon the estate of the deceased, it being a joint undertaking; but that it was admissible to show plaintiff’s right to the money if other evidence showed its collection by deceased, severally.
    Held, further, that the statute of limitations would not commence to run against said receipt until an accounting had been called for.

      Receipt for money and personal prox^erty: Demand : Statute of limitations. Another receipt was for a certain sum of money, and for certain personal property, to be accounted for.
    Held, that as regards the money, the receipt must be considered as a note payable on demand, and that it was barred by the statute; but that as to the personal property, no action could arise until it had been sold or demanded.

      Receipt for money to be axiplied ux)on note in hands of third x^drty: Statute of Limitations: Reasonable time. A fourth receipt of same date was for a sum of money received from plaintiff, to be paid on a note held by another person against him, or to account for the same. Fourteen years had elapsed since the receipt was given: Held, that all claim for this money was barred by the statute, as the deceased would have been bound to make payment of the moneys within a reasonable time, and was liable to be called upon to repay them, if he failed to do so: and that such reasonable time had elapsed more than six years before the father’s death.

      Heard October 23d.

      Decided November 2nd.

    Error to Lenawee Circuit.
    This was an appeal from the allowance by a commissioner of the estate of Daniel Kimball, of certain claims against said estate.
    In the Circuit Court the defendant in error was permitted, under objection, to testify concerning certain dealings between himself and Samuel B. Kimball in his life time, and to offer certain .receipts in evidence.
    Judgment was rendered for plaintiff below.
    The exceptions to the rulings of the court below, are stated in the opinion.

      A. Howell and O. A. Stacy, for plaintiff in error.

      A. L. Millard and A. F. Bixby, for defendant in error.
   Cooley, J.

The first question requiring consideration in this case is, whether the court was right in allowing the claimant, Samuel B. Kimball, to testify on his own behalf to various dealings between himself and the deceased.

The statute provides “ That when a suit or proceeding is prosecuted or defended by the representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be permitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person.” — (Laws 1861, p. 169). The construction put upon this section by the court below, seems to be, that it does not prohibit a party from testifying to transactions which were within the knowledge of the deceased, provided his own knowledge in regard to the transaction was superior in degree, or extended to some particulars which the deceased may not have known.

A few extracts from the bill of exceptions will illustrate the view taken by the court below of this statute. A principal portion of the claim in controversy consisted of an account for butcher’s meat, and the plaintiff being on the stand, was asked by his counsel: “Are these accounts correct, as far as you know?” Which question being objected to, the court overruled the objection “on the ground that, unless from the nature of the transaction, and circumstances of the case, those matters must have been equally within the knowledge of the deceased, the plaintiff is not precluded by the statute from testifying in relation thereto in his own behalf, and that it was competent to show by the witness whether the matters were equally within the knowledge of the deceased and of the witness.” And thereupon the plaintiff testified that the accounts were all correct, as he believed.

Again: under the like objection the plaintiff testified to a charge against the deceased (who was his father), for the keeping of a horse: “Father came and turned the horse into my pasture. I don’t think he knew how long it remained in the pasture. It was about four weeks.” Question. Did your father know as well as you did what it was worth to pasture the horse ? Answer — I don’t think he did. Question — What was- it worth to keep the horse ? Answer— Eight dollars.

Again: the plaintiff, in order to save his account from the operation of the statute of limitations, sought to establish credits in favor of the deceased, and for that purpose was asked: “ What is the credit, ‘ By horse to Templeton’s mill, two dollars,’ given by you to deceased in 1861 for?” Objection being made to this question, the court ruled that the witness could only testify to such matters pertaining to this item as were not equally within the knowledge of the deceased. And thereupon the plaintiff testified that he had his father’s horse to go to Templeton’s mill; that he was gone one day, and th'e use of the horse was worth two dollars; that his father did not go with him. The witness, under this ruling, was made the judge what it was competent for him to testify to, and he seems to have made the most liberal use of his discretionary power.

In like manner, the witness was allowed to testify to other credits in favor of his father, for keeping his, the plaintiff’s, horses, on the ground “that the deceased did not know as much about the credit as the plaintiff did.” He testified that he thought the deceased knew his, the plaintiff’s horses, were kept in the barn of deceased; but did not know how much it was worth, or how long they were there.

These are but samples of the evidence given by the plaintiff, and it is evident that he was permitted to testify to dealings between the deceased and .himself, on the sole ground that in some particulars his knowledge was superior. His testimony was not confined to, those matters of which the deceased was ignorant, but it covered the whole case, •under an assumption of superior knowledge as to time or value. If tbis is a correct construction of the statute, I do not perceive in it that protection to estates against the knavery and perjury of dishonest claimants which it was designed to afford; for the witness, in order to render his testimony competent, has only to assume, that, in some particulars, his knowledge of the transaction is more complete than that of the deceased, and that assumption entitles him to put his account of the transaction before the jury.

I am of opinion that the court erred in its construction of the statute, and that the word “equally,” as employed in this section, does not relate to the degree of knowledge possessed by the parties, but is used in the sense of alike, to preclude the party’s evidence where the facts to which he is. called were known to both. The word equally is often used in this sense, and it can not be employed in any other here, without leading ttf manifest absurdities.

If the estate was legally liable for any such butcher’s bill as was charged against it, the deceased must have had knowledge of its creation. It is not at all probable that he would have remembered all of the items, nor does the plaintiff assume to do so. So far as this record discloses, the superior knowledge which the plaintiff had of the account must have been derived from his books. He has been allowed to give his version of dealings, though the testimony of the opposite party, had he been living, would have covered precisely the same ground, inasmuch as all these dealings, so far as we are informed, were within his personal knowledge. This is not what the statute contemplates. It does not design that one party shall be allowed to give in evidence his version of a transaction within the personal knowledge of both when death has precluded the other from being heard also.

The effect of the plaintiff’s construction is perhaps best seen in the evidence relating to credits. The plaintiff proposes to establish a credit in favor of the estate, by testifying to hiring a horse of deceased to go to Templeton’s mill. If he hired the horse for that purpose, his father must have known of it. There is no pretence that the hiring was not fully understood between the parties, but the plaintiff says, his father did not go with him; and in this exclusively consists his superior knowledge of the transaction, unless he assumes to have known best what the use was worth. His father did not know whether he actually went to the mill, or somewhere else. If the addition of an immaterial circumstance like this will entitle a party to testify concerning a transaction within the knowledge of the deceased, it will be easy for the party to testify fully in nearly every case which can be suggested.

I am also of opinion that the witness is not to be the judge for himself of the competency of his evidence in these cases; but the court must decide upon it. There will be many cases where it cannot be known until the testimony is given, whether it was within the knowledge of the deceased or not; but wherever from the nature of the case he must have known about it, the opposite party should not be allowed to put his own account of the whole transaction before the jury, on pretence of giving evidence upon some branch of it of which the deceased had no knowledge. Wherever there is a fact bearing upon the issue which was not within the knowledge of the deceased, and the party testifies to it, his right to give evidence to that fact does not entitle him to extend his testimony to other facts which were within the knowledge of the deceased, and thereby make out a case which the deceased might perhaps have rebutted by his own evidence had he been living.

It may be, that in a ease like the present, the plaintiff might be entitled to testify to the value of such articles as he claims to have delivered to the plaintiff, where it does not appear that any price was agreed upon; but this would not warrant him in testifying to facts establishing the sale and delivery, which must be proved by other evidence, since of those facts, where the deceased was purchaser in person, it is to be assumed that each party was fully cognizant.

The New York statute forbids a party being examined against representatives of a deceased person, “in respect to any transactions had personally between the deceased person and the witness.” — Code, § 399, as amended in 1860. The purpose of this statute was the same as that of our own, and I think the terms employed mean substantially the 1 same thing. It has been decided, under that statute, that the party was not only precluded from testifying directly to the transactions between himself and the deceased, but also from speaking of the circumstances surrounding such transactions, when the effect of the evidence would be to affect the minds of the jury in respect to the transactions' themselves. Thus, when the signing of a paper by the deceased was in issue, which was claimed to be a forgery, and two different kinds of ink appeared in the writing, it was held not competent for the party to testify that he was in the habit of carrying an inkstand with him about the time when it was claimed the deceased had signed the paper; the effect of the testimony being to show what took place between the witness and the deceased, and to lead the jury to believe that two inkstands were present at the time, and ink by chance used from both.— Dubois v. Baker, 40 Barb. 562; and see Van Alstyne v. Van Alstyne, 28 N. Y. 378.

The next question in the case relates to the statute of limitations. The account for butcher’s meat was all barred by the statute, unless saved by credits which the plaintiff sought to establish in favor of the estate, but of which no account was shown to have been made by the deceased-The judge charged the jury that “in order to prevent the statute of limitations barring and cutting off the account for meat, the claimant must show that there was a mutual account current between him and the deceased during a period within six years prior to the death. That is, that at least the last item of such account, on one side or the other, should have been within the six years prior to the decease of the father. To constitute a mutual account, there must be a mutual credit founded on a subsisting debt on the other side, or an express or an implied agreement for a set-off of mutual debts, or that there was an express or implied understanding that mutual debts should be a satisfaction or set-off so far between the parties. In other words, if no charges appear to have been made or brought forward by the deceased or his representatives in this case, it is not enough for, the claimant to prove that, as a meat market man, he supplied and charged the deceased with meat. This would not make a mutual account current between the parties. Here would be a credit but on one side: it would not be mutual. There must have been a credit on the other side; that is, on the part of the deceased, either expressly given or impliedly; that is, a mutual or alternate course of deal; in other words, there must have been a credit given by the deceased, either expressly or impliedly by his consent, of some items of deal. It is not necessary that it should be put on a book by deceased, or be brought forward by his representatives here as a claim, if the claimant and the deceased at the time understood that the items credited by the defendant were so intended, to go to the credit of the deceased upon the account. - If not, then the items of credit will not operate to make a mutual account current.”

I perceive nothing here of which the defendants below were entitled to complain. It seems to be a correct statement of the law applicable to the book accounts which the plaintiff, claimed to have proved. A portion of the plaintiff’s demand, however, arose upon receipts which stood upon an altogether different footing from the accounts.

The first of these was dated August 13th, 1849, signed by the deceased and one Titcomb, jointly acknowledging the receipt of certain notes for collection, agreeing to apply the proceeds on two certain notes given by the plaintiff, and to pay over or account to him for'the balance. This receipt was admitted in evidence, under objection.

I do not think this receipt was admissible in evidence for the purpose of fixing any liability upon the estate of the deceased, since, so far as it was a contract, the obligation was joint, and not several. But as evidencing the plaintiff’s right to the moneys payable on these notes, and as a foundation for other evidence showing that the deceased had collected the money upon them, or any of them, and by virtue of such collection, had become liable to account, to the -plaintiff therefor, independent of the promise contained in the receipt, I think it would have been competent. Some evidence to establish such separate collections by the deceased was1 put in, and was properly submitted to the

The defendants also objected to this receipt, that it was barred by the statute of limitations; their testator having-deceased in 1863. But this objection has no force, as the statute would not commence running against such a receipt until the signers had been called upon for an accounting. The receipt established the relation of principal and agent in respect to the collection and disbursement of the moneys, which could ionly be changed to the relation of debtor and creditor by a demand.

A second receipt for notes, bearing the same date, was signed by the deceased alone, and was properly received in evidence.

A third receipt signed by the deceased, and bearing the same date, was for sixty-two dollars in money, to be accounted for with interest on demand, and for a chaise and other personal property, to be sold and accounted for. In regard to the money, this receipt must stand on the same footing as a note payable on' demand, and was properly held to be barred by the statute. — Wenman v. Mohawk Ins. Co. 13 Wend. 267; Edw. on Bills, 512. In regard to the personal property, no action would arise until- it had been sold or demanded, and it Avas proper to admit the receipt in evidence, on the understanding that it should be folloAved by a showing of such sale or demand, as the plaintiff proposed in this case. If no such showing was made, the evidence should have been stricken out.

A fourth receipt, of the same date, ivas for fifty-five dollars, with which the deceased undertook to pay the half of a certain note oiving by the plaintiff and himself to one Taylor, or to account for the same, iidth interest, to the plaintiff on demand. This was received in evidence under an objection by defendants that it was barred by the statute. I am inclined to think, that in this ruling the court erred. There is no showing whether the note to Taylor was then due or not, and it is to be inferred that it was. The obligation of the deceased, then, was to pay the note ivithin a reasonable time, or to account for the money. The receipt had been given fourteen years when the testator died, and giving the utmost latitude to reasonable time, we shall still find that an action must have accrued more than six years before the testator’s death. I do not think a demand ivas essential to the right of action. The deceased undertook to pay the money on the Taylor note, and this was eiddently the main purpose of the receipt. The remaining clause of the document meant no more than that, if he failed to make the payment, he would remain liable to the plaintiff for the amount, with interest.— See Waters v. Earl of Thanet, 2 Q. B. 757.

This disposes of the objections argued in the brief of the plaintiff in error. As I think the court erred in some of its rulings, as indicated, I think the judgment should be reversed, with costs, and a new trial granted.

Christiancy J. concurred.

Campbell J.

The charges of the court upon the subject of excluding the testimony of defendant in error, were all given in the words of the statute, but in some instances it is very plain that they were so applied as to mislead the jury and to allow the consideration of incompetent evidence. Under the rulings, he was allowed to testify concerning dealings had personally with his father, merely because he had, or claimed to have, superior knowledge, or knowledge on some matter connected with the legal operation of the transaction which his father was not supposed to know. In some instances he was apparently allowed to testify on facts known to both, on the ground that he knew more about prices or values than his father.

Even if it were true that superior knowledge concerning personal arrangements would open the door to full testimony on what was known, as well as what was not known to both, questions of value, where no price has been agreed upon, are independent facts, having no more relation to one transaction than to another. They stand entirely outside of the dealings of the parties, and may be proved by any one. And while I see no reason why defendant should not prove value, his right to do so cannot enable him to prove other things within the exception of the statute.

When the statute excludes the testimony of a survivor concerning matters which must have been equally within the knowledge of the deceased, I understand it to refer to all matters so far as they were transacted between the parties personally, and concerning which the knowledge on both sides was derived, not from information of agents or others, but from direct participation, perception, or action. The object of the law was to prevent one party from having an opportunity, after another’s death, to give evidence, which, if living, it would have been in his power to explain or contradict, in case it should be untrue. And nothing whatever, that took place at any personal interview, or by the personal act or intervention, or with the actual knowledge of the deceased, can be shown by the survivor.

But the statute only excludes that which “must have been” within the knowledge of the deceased. And, inasmuch as there may be many things done or furnished, to a person concerning which he has no direct knowledge, I think nothing can be excluded unless it is clear that such personal knowledge must, from the nature of the case, have existed, until it appears in fact. And, until so appearing, I see no reason why the survivor may not testify. I do not think it by any means can be inferred, without proof, that the various articles furnished a family by a butcher from time to time must necessarily have been within the personal knowledge of the head of the family, and the court can not properly assume that they must have been.

But upon several matters appearing in the case, a personal knowledge was manifest, and the evidence of defendant, as to those, should have been excluded. A question somewhat analogous was decided in McBride v. Cicotte, 4 Mich. 478. It was there held that, under a statute allowing a party to be called to prove facts which there was no competent witness attainable to prove, it was not allowable to introduce a party to contradict other witnesses, or to swear to facts on which they might be questioned, simply because he would give a different version. The exclusion was held to depend upon the transaction concerning which they testified, and not upon their varying accounts of it. And upon similar grounds it was held in Hogan v. Sherman, 5 Mich. 60, that the affidavit for the examination of a party under that statute should properly state the general fact to be proved, and not the separate circumstances which were to be shown to make it out.

I concur, therefore, in holding that the court below acted on an erroneous view of this statute.

I also concur on the other points discussed by my brother Cooley, upon the grounds he has taken.


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    Elliott F. Covell v. Julia Cole et al.

      Dewee fo7' specific performance: Defective title. Where a party agrees to convey lands, and can only make title to an undivided interest, a complainant offering to pay a proportionate price, and to accept such undivided interest, may have specific performance therefor, unless there are peculiar equitable reasons to the contrary.
    But the decree in such case must be confined to the undivided interest, and can not be made to require the future conveyance of the remainder.
    Pro confesso: Testimony: Decree: Costs. Where a bill is taken as confessed on service of process, it is irregular in ordinary cases to take testimony to support it, and the costs of such testimony can not be charged against a defendant. Nor can a decree in such case be based on anything not alleged in the bill, either originally or by way of amendment.

      Purchase money; Interest. Where a complainant is decreed rent for premises not delivered him according to agreement, he can not be relieved from interest on unpaid purchase money.

      Heard October 26th.

      Decided November 2d.

    Appeal in Chancery from Kent Circuit.
    The bill in this cause was filed to enforce the specific performance of a contract for the sale of certain lands.
    A demurrer to the bill was filed by the two principal defendants, and which was overruled. The bill was taken as confessed, as to the remainder of defendants.
    The court below rendered.a decree that defendant convey to complainant an undivided two-thirds of the premises contracted for, and that they procure for him a perfect title for the remaining one-third.
    The facts are stated in the opinion.

      T. Bomeyn, for appellants.
    1. The agreement was to sell an entire property for one consideration. The parties are unable to make a title to the whole; and they can make no title to any distinct and divisible portion.
    Equity will not compel a purchaser to take, nor a vendor to convey, undivided interests in a case like this free from all fraud. — 2 Bro. C. C. 118; 3 Sim. 29.

      If tlie purchaser can not be compelled to take, neither can the vendor be compelled to convey such undivided interest, when he appears to have made the contract in ignorance of the extent of his title.
    2. Both the parties, at the time of the agreement, knew that the title was imperfect, and both were aware that the title was to be made under the will of a third person.
    When that will was procured, it was first discovered that there ivas no title to one-third, and this was communicated to the defendants. No fraud is suggested or inferrible. Now, to compel the parties to convey two-thirds, and get payment for but that proportion, would defeat the probable object which they had in view in selling, and would involve great hardship.
    The granting of this relief depends upon a temperate consideration of the facts in each case. — 10 Ves. 319.
    3. According to the terms of the contract, the defendants were not to convey until the title was perfected. This has not yet been done, and, therefore, they are not yet in default.
    4. This was a case of mistake. The interest to be conveyed did not exsist. The defendants had no title to one-third of the premises; and the complainant could not have been compelled to accept the two-thirds, neither can he compel the conveyance to him of such partial interest.
    There is an evident distinction between this class of cases and those where a party, knowing the limitations of his title, chooses to contract for the conveyance of a greater estate.' — 10 Ves. 316; Story’s Eq. §§ 141-143; 1 Scho. and Lef. 13; 8 Paige, 312.
    It is unreasonable to suppose that the defendants would have made this agreement if they had understood the true state of the title; and the court will not decree specific performance, unless it is clearly satisfied that the agreement' embodies the real understanding of the parties. — 15 Mich. 388.

      5. In any view of this case, the present decree is inequitable and oppressive.
    The defendants are to receive payment for two-thirds, and to surrender the possession of the other third; and the complainant is to be allowed the rent of the whole, while he pays for a part.

      George Gray, for appellee.
    A purchaser who has contracted for the whole estate, without notice, that the vendor has not or can not get the whole, is entitled to such interest or quantity as the vendor can convey, with compensation or reduction for the balance. 2 White & Tudor’s Eq. cases, part 2d, pp. 24, 35; 16 Vesey, Jr. (Sumner’s ed.) 1, 390; 10 Id. 292; 17 Id. 394; 9 Johns. 450; 3 Sanford’s Chy. 613; 1 Hare (Eng. Chy.), 26; 3 Beavan, 123; Adams’ Eq. marginal page 91; 2 Pars. on Cont. 540, 558; Story’s Eq. Jur. § 779; 8 Blackford, 146; 34 Ala. 633; 6 Wis. 127.
    Complainant having made a tender of the money to be paid down, and kept such tender good, is entitled to rents and profits from the time he should have received possession, and should pay interest from same time on portion not tendered.— 2 White & Tudor’s Eq. cases, 16, 17; Adam’s Eq. margin (68).
   Campbell J.

Complainant filed his bill for specific performance of a contract made by the defendants Cole and Moseley, to convey certain property at Grand Rapids to himself and one Rogers, who has assigned his interest to complainant. The bill was taken as confessed.

The case made, is in substance that Cole and Moseley agreed to make title to the premises as soon as possible, and within a specified time deliver up possession. It was then supposed the only thing required to make the title perfect was the probate of a will, under which defendants had received an executors’ deed. It afterwards turned out that only two -thirds of the title vested by that deed, the remainder being outstanding, and no'contract or other interest existing in the defendants for that third. Complainant and Bogers desired possession on the appointed day, but were put off on some pretext, and Moseley subsequently conveyed his interest to the defendant Young, who is charged with notice. Complainant desires a performance as to the two - thirds, if the remainder is not attainable. There are some questions about incumbrances, which are not very material to be conáidered now.

There was some testimony taken, but the bill has not been amended, and any relief granted must be confined to such as is warranted by the bill itself. This testimony should not have been introduced.

We think complainant was entitled, under all the circumstances, to waive the full performance, and require a performance so far as in defendant’s power. This right on the part of a complainant, to waive a part of his rights, has been recognized frequently in such cases, and a court may permit it where no injustice will result therefrom. But it can not be allowed where it puts the defendant, without fault, in an unjust and unexpected position. It was claimed that such would be the result here. But we can see nothing that satisfies us that any such injustice would result. The defendant Moseley, assuming, as we must in this case assume, that the bill is true, disposed of all his interest to Lena Young, and the other defendant does not appear to have been unwilling to sell out. We can see no good reason for supposing they would not have sold out had they known their title to have been imperfect, nor can they be legally injured by being compelled to convey it on proportionate terms. The decree, so far as relates to the conveyance of an undivided two-thirds, is correct.

But there are other ^particulars in which it cannot be sustained. Complainant shows by his bill that defendants have no title to the remaining third, and does not show that they haye any means of obtaining it. It would be unjust and unauthorized, when he has filed his bill on this theory, to compel them to purchase the remainder. He must make his election; and we can not grant a decree which may turn out to be impossible of performance. The part of the decree compelling this is wrong. So he should not have been decreed full possession of the premises when he is only entitled to a right in two-thirds.

The decree is also inequitable in allowing complainant rent while exempting him from the payment of interest on the cash payment. It is equitable to allow him rent at the rate stated in the bill, but he should pay interest, if this is done, on his purchase money. And, as the bill was taken as confessed, there is nothing on which to base the increase of rent from three hundred and twenty dollars to four hundred dollars.

The decree must be so modified as to confine its operation to the undivided two-thirds of the premises, and to confine the possession to that proportion. The rents are to be allowed to complainant on two-thirds of the property at ■ the rate of three hundred and twenty dollars per annum, for the whole, and the cash, as well as other payments, must be made to bear interest from the time when the allowance of rents begins, as set forth in the decree.

The defendants Cole and Moseley should be allowed their costs of the appeal. But the costs of the court below should be allowed to complainant, as he was entitled to relief, although not all the relief for which he saw fit to take his decree. But he is entitled to no costs below, except such as are allowable on an ordinary case where the bill is taken as confessed.

In other respects the decree is to stand.

Christiancy and Cooley JJ. concurred.

Martin Ch. J. did not sit.