Whitford v. The Panama Railroad Company.

in consequence of a battery, after a trial and recovery had been had. It was held that no second action would lie. We may suppose then that death ensues as the foreseen consequence after the wrong has been satisfied or has passed into judgment against the offender. It would be competent, doubtless, for legislative power to define this as a new and distinct cause of action, which ought to go to the increase of the decedent's estate; but the departure from the logic and the analogies of the law would be so manifest that the intention ought to be expressed in very unambiguous terms.

Against such a construction of the act in question may be urged not only its language, upon which I have commented, but the consequences, which must involve the administration of justice under the statute in great absurdities. We may suppose a case where a plaintiff has been crippled for life, in a railroad collision, and brings his action at the common law, and that on the trial it appears from the medical testimony that for the remainder of his days he must be a burden instead of a benefit to his estate. It is plain that the damages in such a case must be awarded upon grounds which necessarily include the claims of his representative under the statute, if death had been the immediate result of the injury. And yet, upon the doctrine contended for, if the plaintiff should die after such a recovery, in a new action a jury might award $5,000 more. This would be a double satisfaction not only for a single tort but without any new development of loss or damage. I have in mind a case where the injured plaintiff recovered a verdict. of $14,000, against a railroad company. If he had afterwards died of the injury another verdict might, under the statute of 1847, have been rendered in the suit of his representative.

Again, we may suppose that the person injured, without bringing suit, lingers in pain and suffering for a year, and dies, and that, during all that period, he has not only been unable to attend to his business affairs, but has incurred great expense for medical care and attendance. All these circumstances would be considered in estimating the damages to which the party was entitled in his lifetime. If such damages were paid

Whitford v. The Panama Railroad Company.

to or recovered by him, those entitled in succession after his death would take the benefit. But, not being paid or recovered, they are forever lost, if the proposition contended for in this case is sound. That proposition is, that the action of the representative in such cases is founded on the death as a cause of suit, distinct from the compensation which the injured person has a right in his lifetime to claim. But the statute says that the damages may be recovered, not for the death, but "notwithstanding the death." The legislature thought it unjust that the wrongdoer should allege that the injury inflicted by him was fatal, in other words the highest possible aggravation of the wrong, in bar of the claim for damages. They, therefore, changed the rule of the common law by providing that the damages should go to the representative for the benefit of the wife and next of kin. My conclusion is, that the claim of the decedent, in his lifetime, under the statute always vests in the representative. Some remarks of mine in Quin v. Moore (15 N. Y., 435), may be in opposition to this view. But they were unnecessary to the decision of that case, and were not well considered.

It may be urged that the party, while living, can never recover a compensation for his own death by a verdict rendered in his lifetime. In mere words, this is a plausible statement. But, in a legal point of view, the difficulty does not exist. Every suit to recover damages is brought, in a just sense, for the benefit of the plaintiff's estate. On the trial of an action for a personal injury, it may appear that death must afterwards ensue as the result of the wrong. Medical science may easily demonstrate the fact. Or, it may appear to be doubtful whether the plaintiff will be a helpless cripple while he lives, and die in the course of nature; or whether he must die from his injuries within a few days. Upon a doubt of that kind, would it be proper to instruct a jury to mitigate the damages in case they believed that death must ensue? Plainly this cannot be so. It was never heard that an assault and battery, or other tort to the person, was of less consequence in the eye of the law because it is attended with such force and SMITH.-VOL. IX. 62

Whitford v. The Panama Railroad Company.

violence that the life of the victim is shortened. The aggravation of the circumstances cannot be urged in mitigation of the loss or of the punishment which the law metes out to the offender.

The analogies of the law require, as I have said, that entire compensation for all the consequences for a single wrong must be given by a single verdict. Those consequences may have been experienced at the time of the trial, or they may be prospective. If prospective, they are to be ascertained as well as they can be from the nature and severity of the injury inflicted. Some infirmity will always attend the administration of justice, arising out of uncertainty in the facts to be considered. But the principle here stated is elementary and familiar. If a parent brings the action for an injury to his child, the loss of service, both past and future, will enter into the question of damages. The future loss may result from the child's death, an event which the evidence may show will be the probable result of the wrong. The evidence must determine the fact to the satisfaction of the jury. The principle of compensation will not change, as the evidence may shift, on this point. The loss of service may result from inability to labor or from death, and it is not material which. In such cases, doubtless, two actions may be brought without the circumstance of death. The child may recover for the personal wrong and suffering; the parent for the consequential loss of service. If death results, both these causes of suit may, or may not, be united in the administrator. On principle, I should say that the action of the parent, for the consequential loss of said ser vice, is not affected by the death of his child or servant. However that may be, it is plain that there is only one cause of action when the person injured owes no service to any one else. This is conceded to be true while he lives, and I think it equally true after his death. It is true the statute says “the jury may give such damages as they shall deem fair and just, resulting from the pecuniary injury resulting from such death.” This would be so without the statutory declaration. The sta tute was only required to create a survivorship of the cause

Dagal v. Simmons.

of action: that being established, all the circumstances attending and resulting from the wrong would enter into the measure of damages; and where there is but one cause of action in the lifetime of the party, I think that the action by his represen tative is not only for the same wrong, but that the damages to be recovered are determined according to the same principles and facts. Such a wrong, therefore, admits of but one satisfac tion, which was had in the present case before the suit was brought.

HOYT, J., also dissented.

Judgment affirmed.

DAGAL V. SIMMONS et al.

An answer is sufficient to set up the defence of usury to an action on a promissory note where it states an agreement, upon the application for a loan, to give more than legal interest, and that the lender deducted from the amount for which, with interest, the note was made "about enough, as he said, to buy a barrel of flour, which amount, as the defendants believe, was seven or eight dollars."

The case of Manning v. Tyler (21 N. Y., 567), considered and distinguished.

The judgment at special account of the frivolous

APPEAL from the Supreme Court. term was against the defendants on ness of their answer, and this was affirmed at general term in the third district. The defendants appealed to this court The complaint counted on a joint and several promissory note made by the defendants for the payment of $175, with interest, six months from its date, December 5th, 1855. The defendants put in a joint answer, in which they averred that Simmons, being desirous of obtaining a loan of money, authorized the defendant Wooster to procure the same for him. "And the defendant Simmons, upon information and belief, further says, that Wooster accordingly applied to the plaintiff for a loan." It then states in substance as follows:

Dagal v. Simmons.

That the plaintiff said he must have more than legal interest; that Wooster then agreed to give him more than legal interest; that the defendants then procured of the plaintiff $70, and gave him their note therefor, the plaintiff then saying that, in a short time, he would let them have more money. That in pursuance of this agreement, on the 5th of December, 1855, the defendant Simmons received of the plaintiff, the former note of about $70, and bank bills and silver, sufficient to make together $175, the plaintiff taking therefrom about enough, as he said, to get him a barrel of flour, which amount the defendants believe was about seven or eight dollars. And the defendants then gave to plaintiff their note for $175 with inte

rest.

"And the defendants further say, that said money was let as above-mentioned, and for more than the legal interest of seven per cent per annum, contrary to the statute, and the defendants charge and claim that said note in the complaint mentioned is usurious and void." The answer was verified by both defendants as true of their own knowledge, except as to such matters as were therein stated on information and belief, and as to such matters they affirmed their belief of its truth.

The cause was submitted on printed arguments

Clarence Buel, for the appellants.

R. A. Parmenter, for the respondent.

BY THE COURT-LOTT, J. The answer does not allege the facts and circumstances set up as a defence with such precision and certainty as ought to characterize a proper pleading; but the defects relate to the form, and not to the substance, of the allegations contained therein.

It avers that the note in question was given on a loan of $175 by the plaintiff to Simmons, one of the defendants, upon an agreement that more than legal interest should be allowed therefor, contrary to the statute, and that, in pursuance of such agreement, the excess was deducted from the amount borrowed.