Ohnmacht v. Mount Morris Electric Light Co.

O’Brien, J.: Even though the complaint did not show that the dfeath of the plaintiff’s son was instantaneous, this fact was established beyond dispute by the evidence; and as there is no demand for medical [484] expenses, the single question presented is whether or not upon the facts pleaded aiid'proven, there can be a recovery by the father for loss of services because of the negligent act of the defendant in causing his son’s death. It is contended by the appellant that the cause of action set up in the complaint is warranted by the common law. On the other, hand, the respondent contends that there, is no such common-law action, and that the only person who could-bring an action to. recover for the death would-be the personal representative of the minor son, by virtue of section 1902 of the Code of Civil Procedure; and that an action for loss of services can 'only -be brought to recover such services as may be lost during, the time between the alleged wrongful act and the death resulting therefrom. Evidently what is sought in this action is to recover for loss of services to which the father would have been entitled had the son lived, but there is no authority either in common law or by statute: for such an action. Undoubtedly the father could recover for the loss of services if the injury had not resulted in death, and he could recover for such loss between the time of. the injury and death. He could not, however, at common law recover for loss of services of a minor son owing to his death through another’s negligent act, if such death, as in the case at bar, was instantaneous. This subject was discussed at length and authorities bearing thereupon were collated in the case of Green v. Hudson River R. R. Co. (2 Abb. Ct. App. Dec. 277), and among others which are cited therein with approval is that of Carey v. Berkshire Railroad Co.(1 Cush. 475), which is identical with this action and where,- as stated, “ the plaintiff’s child was instantly killed by the carelessness of. the defendant’s servant, and the father, brought Ins action to recover damages for his loss of service. The court declared the common law to be decisive against the action.” :Ánd in Sorensen v. Balaban (11 App. Div. 164) it was said : “ It clearly was the rule at common law that no civil action would lie for causing the death of a human being. (Cooley on Torts, *262.) While a husband or parent might maintain an action for a wrong causing loss of services from a wife or child if the injury resulted in death, this could not at the common law, be taken into account either as. a ground of action or as an aggravation of damages, and the plaintiff’s recovery would be limited to loss of service intermediate the injury and the death.- [485] * * * Of course, for many years, the statute has prescribed a remedy for such wrongs. An action for a wrongful act causing the death of any person may be maintained by the executor or administrator of such person for the benefit of his next of kin. (Code Civ. Proe. § 1902.)” An interesting discussion of this same subject will be found in the case of Davis v. St. Louis, I. M. & S. R. Co., 7 L. R. A. 285, where the rule is thus stated : “ Where the injury resulted in death, the father’s right of recovery by the common law was limited to the interim between the disabling injury to the child and its death. His right of recovery was restricted to the value of the minor’s services and the cost of medical attendance and nursing to the time of death. The right fell with the life of the minor. This was upon the theory that no civil action would lie for a right springing from the death of a human being.” Prior to the statute there could be no recovery in the case of death. It was considered that life was too precious to be compensated for by money. The only punishment for negligence was in a criminal proceeding. As we became more commercial, the Legislature put a price upon a life and then removed the limitation. Now recoveries may be had, but only in the way prescribed by the statute for the pecuniary damages sustained by the next of kin of. the deceased, when the death has been occasioned by negligence and the decedent is free from contributory negligence. The'action which the plaintiff here endeavored to maintain on his own behalf and for his qwn benefit; and the action provided for .by section 1902 of the Code, are not idéntical, the latter being one that must be maintained in the name of the executor or - administrator for the benefit of the next of kin. For the reasons stated, the judgment dismissing the- complaint must be affirmed, with costs. ' The appeal from the order should be dismissed, the order not being appealable. Yan Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.„ concurred. Judgment affirmed, with costs. Appeal from order dismissed.