!

action was sustained on the ground that the wrong was of a twofold nature,-wounding the father in his feelings, and affecting his property rights,-resting as it does on the technical ground that by the injury he lost service of some pecuniary value. The distinction between the two cases consists in that in the former the injury was purely personal, and in the latter the cause of action related to property rights, which gave to the suit the quality of survivorship, and took it out of the maxim, "Actio personalis moritur cum persona." The force of these decisions, especially the last, will be apparent when the construction and effect of the act under which this suit was brought are considered.

The law on this subject was amended in England by 9 & 10 Vict. c. 93, known as "Lord Campbell's Act," which was passed in 1846. This statute conferred a right of action in the name of the personal representatives of a person whose death has been caused by the wrongful act, neglect, or default of the defendant for the benefit of the wife, husband, parent, and child of the person whose death shall have been caused. This act created a This act created a new and anomalous kind of right and remedy by way of exception to the maxim, "Actio personalis moritur cum persona." Pol. Torts, 58. In this state, by an act passed March 3, 1848, entitled "An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default," remedy was given in every important particular analogous to that of the English statute. The act provides for an action brought by and in the names of the personal representatives of the deceased; it provides that the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person, and at the trial the jury might give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death, etc. 1 Gen. St. p. 1188, §§ 10, 11. The English courts, in construing Lord Campbell's act, hold that the statute gave to the personal representatives a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle,a new right of action. Pym v. Railway Co., 4 Best & S. 396; Blake v. Railway Co., 18 Q. B. 93, 110. In Seward v. Vera Cruz, in the house of lords, Lord Selborne, in construing Lord Campbell's act, says: "It gives a new cause of action clearly, and does not merely remove the operation of the maxim, 'Actio personalis moritur cum persona,' because the action is given, in substance, not to the person representing in point of estate the deceased man, who would naturally represent him as to all his own rights of action which would survive, but to his wife and children, no doubt suing in point of form in the name of his executor." Lord Blackburn said that: "A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived; an action

which is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of widow, parent, or child, who, under such circumstances, suffers pecuniary loss by the death." 10 App. Cas. 59, 67, 70. Not that the injury for the redress of which statutes of this kind are directed did not exist prior to this sort of legislation. That such an injury was not redressible at common law by an action was due to the fact that by a technical rule such an action was not maintainable. In Haggerty v. Railroad Co., which was a suit under our death act, Chief Justice Beasley, in delivering the opinion of the court, said: "The design of the act cannot be mistaken. It is entirely and in the highest sense remedial in its naIts object was to abolish the harsh and technical rule of the common law, 'Actio personalis moritur cum persona.' The rule had nothing but prescriptive authority to support it. It was a defect in the law, and this statute was designed to remove that defect." 31 N. J. Law, 349, 350. The grounds on which this common-law rule was vindicated were that the policy of the law refuses to recognize the interest of one person in the death of another, and that the value of human life is too great to be estimated in money. Pol. Torts, 56, 57. In both of these respects the statute has wrought a change in the common law. The title of the act expresses the legislative purpose to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default. This purpose is consummated by enacting that the person or corporation whose wrongful act, neglect, or default caused the death should be liable in damages; and the action brought in the name of the personal representatives of the deceased is given for the benefit of the widow and next of kin of the deceased, and the method by which the damages are to be adjusted is prescribed by the legislature to be such as the jury should deem fair and just with reference to the pecuniary injury resulting from such death to the widow and next of kin. The statute having provided for an action to recover damages for the death of a person by the wrongful act of another, and having conferred a pecuniary interest in the life of such deceased for the benefit of his next of kin, the grounds on which such an action was denied at common law have been entirely removed. The controlling features in this legislation are that damages are made, recoverable for causing death as compensation for the pecuniary injury the designated beneficiaries have sustained by reason of the death. If there be no widow or next of kin at the time of the death of the deceased, the pecuniary injury contemplated by the statute does not exist, and the action cannot be maintained. It is also clear that the pecuniary injury to be compensated for is that of the widow or persons who are next of kin at the time of the death of the

deceased, and that the cause of action created by the statute inures to such persons as a rested right. By this statute a property right is created in the beneficiary of such a nature as, under the ruling in Noice v. Brown, would give the action the quality of survivorship, and take it out of the maxim, "Actio personalis moritur cum persona."

The pecuniary injury of the beneficiary begins immediately on the death of the deceased, and is a continuing injury until compensated for under the conditions expressed in the act. Suit must be brought within one year after the death of the deceased, but how long the litigation may be protracted is problematical. If the death of the beneficiary before the end of the litigation discharges the liability of the wrongdoer, the legislative purpose that the wrongdoer should make compensation to the beneficiary for the pecuniary injury sustained by him would be defeated. Such a construction would be contrary to the policy of this legislation, and would thrust into the administration of a statutory proceeding, which our courts have declared should be beneficially construed, a technical rule of the common law of harsh injustice. The death of the beneficiary pending suit will have a controlling influence over the quantum of recovery. The personal injury sustained would be limited in duration and extent to his lifetime. But the death of the beneficiary pending suit cannot be made available to abrogate the liability of the wrongdoer, incurred, for the pecuniary injury already sustained. The right to compensation vested in the beneficiary immediately upon the death of the deceased. By the death of the beneficiary pending suit there was neither an abatement of the action in the common-law sense, nor was the cause of action to be compensated for satisfied or discharged. It is contended, however, that, inasmuch as the statute does not provide for an executor or administrator for the beneficiary in case of his death before the suit is determined, the action, therefore, abates; but no purpose would be accomplished by introducing such a personal representative into the record. The legislature selected the personal representative of the original deceased as the party by whom the action should be brought, to whom the control of the suit was committed, to conduct it for the benefit of the next of kin. The proceeds of the suit, when realized, and in the hands of such personal representative, would be assets of the beneficiary, to be disposed of by his will or under the statute of administration, whether the beneficiary died before or after final judgment was recovered. Until the proceeds are required to be distributed as provided by the act, there is no occasion for an executor or administrator of any deceased beneficiary. The father in this instance, at the time of his death, left children surviving him. There was, therefore, no failure of representatives among whom the assets of his estate by law might be distributed.

His right to be compensated for the pecuniary injury he sustained was such a property right as, under the legal principles that controlled in the construction of the preceding statutes, would give the cause of action the quality of survivorship, and take it out of the maxim, "Actio personalis moritur cum persona." By the machinery adopted by this statute for the enforcement of this pecuniary injury, such a suit would survive to the personal representatives of the first deceased.

With respect to the damages recoverable in such a suit, they are not such as arise from injury to the feelings, but are awarded in reference to a pecuniary loss, and in estimating damages the jury cannot take into consideration mental suffering or loss of society, but must give compensation for pecuniary injury only. Such an action cannot, under the terms of the statute, be maintained for nominal damages. Blake v. Railway Co., 18 Q. B. 93; Franklin v. Railway Co., 3 Hurl. & N. 211, 215; Duckworth y. Johnson, 4 Hurl. & N. 653; Smith, Neg. 243. Not that the proof with respect to the personal injury need be such that the amount of such damages may appear with exactness. If the evidence be such as to show a reasonable expectation of pecuniary advantage, the extinction of such an expectation by an act occasioning the death of the party from whom it arises will sustain the action, and it is for the jury to say, under all the circumstances, taking into account all the uncertainties and contingencies of the particular case, whether there was such a reasonable and well-founded expectation of pecuniary benefit as could be estimated in money, and so become the subject of damages. Pym v. Railway Co., 2 Best & S. 759, 768; Franklin v. Railway Co., 8 Eng. Ruling Cas. 419; Paulmier v. Railroad Co., 34 N. J. Law, 151, 157. In the case last cited Chief Justice Beasley said: "It will be observed that this rule assumes that the pecuniary injury designated by the statute is nothing more than a deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased. It is upon this principle that our statute is to be applied. The jury must weigh probabilities, and, to a large extent, form their estimate of damages on conjectures and uncertainties." It may be gathered from the record that the injury that caused the death of the deceased occurred on the 25th of January, 1896. The suit was brought on the 1st of December of that year, and it was brought on for trial in January, 1898. By the record it appears that the plaintiff produced testimony tending to show that the death of the plaintiff's intestate was caused by the negligence of the defendants; that her next of kin was her father, Peter Hunley, to whom, and to her mother, the decedent had been accustomed to make pecuniary contributions; that, pending this suit, the said Peter Hunley died intestate. There was such evidence with respect

to the pecuniary injury sustained by the father as, under the cases cited, was competent to go to the jury on the issue of damages contemplated by the statute. The judgment of nonsuit should be set aside.

MCGILVERY v. NEWARK ELECTRIC LIGHT & POWER CO.

short circuit knocked out a plug or fired a fuse in the power house of the defendant; that this caused a cessation of the flow of the current through the wire, and gave notice to the defendant of the happening of an accident; and that, in negligent disregard of this notice, the defendant reinserted the plug, or substituted a fuse, which restored the current that thereupon flowed again into the wire, and caused the death of the intestate.

Nov. 20, 1899.)

ELECTRIC WIRES-NEGLIGENCE.

It

In an action against an electric light company for causing the death of the plaintiff's intestate, who was an employé of the traction company, the plaintiff proved that the employés of the traction company broke down a wire of the electric light company, the naked end of which was touched to a metallic hydrant, and gave no flash, and that shortly afterwards the intestate handled this wire, and was killed. was also proved by an expert witness called by the plaintiff that the failure to elicit a spark from the wire indicated either that the circuit was perfectly insulated, or that the current was off, and that whether the breaking and grounding of the wire would be indicated at the defendant's power house depended upon "how severe the ground was," of which there was no proof. Held, that this testimony was incapable of supporting the burden of proof necessary to the plaintiff's recovery, and that a verdict should have been directed for the defendant.

(Syllabus by the Court.)

Error to supreme court.

Action by Sarah McGilvery, administratrix, against the Newark Electric Light & Power Company. From the judgment of the supreme court (41 Atl. 955) reversing a judgment for plaintiff, she brings error. Affirmed.

Samuel Kalisch, for plaintiff in error. Chauncey G. Parker and R. V. Lindabury, for defendant in error.

GARRISON, J. The cause of the death of the plaintiff's intestate was a current of electricity passed by the defendant company through the wires of its electric light system. The plaintiff's allegation is that such transmission was, under the circumstances, a negligent act. The facts proved are that one of the fellow servants of the deceased let the heavy feed wire of the traction company fall upon a wire of the electric light company, breaking it, and bringing it down to the street; that another co-employé touched the naked end of this wire to a metallic hydrant, and elicited no flash; and that a few minutes later the plaintiff's intestate took this wire in his hand, and was killed. Upon this meager state of facts the gravamen of the plaintiff's action is that the defendant had notice of the occurrence of the accident to this wire, and negligently disregarded it, thereby causing the death for which suit is brought.

The hypothesis is as follows: That the fall of the feed wire broke the defendant's wire, and brought it down to the street; that this led to the grounding of the wire; that this grounding caused a short circuit; that the

ceived that, excepting the fall of the wire, and its fatal handling by McGilvery, everything rests in inference (if there be adequate testimony) or in conjecture (if the evidence be legally inadequate).

The testimony by which the plaintiff sought to supply the basis for such inferences was that of an electrical expert, whose opinion was asked upon two questions:

First. What was indicated by the failure to elicit a spark when the wire was touched to the hydrant? and

Second. What indication would there be at the power house when a wire broke and was grounded?

The answer to each of these questions is vital to the plaintiff's case, for without proof that the current was off there could be no inference that it had been turned on again, and without proof that the grounding of the wire was indicated at the power house there would be no suggestion of notice to the defendant, and hence no inference of negligence.

To the first of these questions the witness replied that the failure of the wire to send a flash when touched to the hydrant indicated one of two things,-either that the circuit was perfectly insulated, or that the current was off. And to the leading question, "Wouldn't it positively show that the power was off?" he answered: "No; not if the whole circuit was insulated from the ground. You can test one single portion of it against the ground without getting a flash."

Inasmuch as the normal, and hence presumptive, state of the circuit was one of perfect insulation, even as to the dynamo, as is shown by the testimony, and as there was no pretense of deficient insulation, the hydrant test was no proof at all that the current was off; and the same remark applies to the touching of the wire by the witness who handed it to McGilvery. These are the two circumstances by which it is sought to show that the current was off. Standing alone, without expert connection, these facts are absolutely without significance, while with the expert ex planation they are equally as consistent with the presumption of the continuity and normal condition of the defendant's circuit as they are with the specific act of negligence alleged; so that in no aspect do they afford that preponderance of proof that is absolutely essential to the plaintiff's recovery.

The other point upon which the plaintiff

had recourse to expert testimony was: "What indication would there be at the power house when a wire breaks and is grounded?" to which the answer and subsequent questions were as follows:

"A. There might be either a rise in the current in the amperage, or the rise might be sufficient to blow through the plug or cut off the fuse.

"Q. It would be one or the other? "A. Not necessarily."

And upon cross-examination:

"Q. I understand you to say that the grounding of a wire will not always blow out a fuse?

"A. No; not invariably. It depends upon how severe the ground is."

What is meant by "a severe ground" was not shown. It was assumed upon the argument to mean a short circuit, but how short a circuit must be to be severe was not shown.

Nor was there any evidence as to the distance of the point of break from the power house, or any other proof from which the severity or "shortage" of this particular ground or circuit could be ascertained.

This likewise leaves the plaintiff's hypothesis barren of any testimony capable of sustaining the inference that the defendant had notice of the accident; still less of sustaining the necessary burden of proof upon a point that is essential to the gravamen; for the plaintiff's complaint is not that the defendant was careless in the construction, inspection, or repair of its wires, or that in the ordinary operation of its line it was negligent, or that it wrongfully kept its current on or failed to turn it off, but that, having had notice that it was off, it carelessly turned it on; in fine, that it did an affirmative act that was negligent in view of the significance it ought to have attached to the notice it had received. The real negligence, therefore, is the disregard of the alleged notice. Hence, if there were no notice (or, what is the same thing, no proof of notice), there could be no inference of negligence. And of notice we have seen that there was no proof; certainly no preponderating evidence.

This doctrine of the plaintiff's preponderance of evidence is one of substantive law, and not a mere matter of procedure. Whether, in a given case, the testimony is capable of sustaining the burden of proof, is a court question, both before verdict and after. A verdict does no more than the court would do without it, viz. solves all fairly debatable inferences in the plaintiff's favor. If, notwithstanding this, the essential facts are still in equipoise, there is no preponderance of proof, and a jury is impotent to supply by its verdict a probative weight that is lacking in the testimony. It is not a question of the weight of conflicting testimony, such as trial courts settle as incident to their verdicts, but of the sufficient compliance with a legal rule that appellate courts notice and enforce.

This rule was, at the trial, invoked by the

motion to direct a verdict upon the ground that there was no evidence of negligence on the part of the defendant. In my opinion, that motion should have prevailed. Upon this ground I shall vote to affirm the judgment of the supreme court.

HUDSON TRUST & SAVINGS INST. v.
CARR-CURRAN PAPER
MILLS et al.

(Court of Chancery of New Jersey. Nov. 6, 1899.)

ATTORNEY AND CLIENT-COMPENSATION

LIEN-TAXATION.

1. A client has an absolute right to change his solicitor, but he cannot, in so doing, deprive him of any lien he may have for his compensation.

2. Where a client desires to change his solicitor, and such solicitor has a lien on a fund, unless there is a guaranty that the solicitor will be paid, he is entitled to have the fund paid into court pending the determination of his compensation.

Action by the Hudson Trust & Savings Institution against the Carr-Curran Paper Mills and others. Motion to substitute solicitor.

William D. Edwards, for the motion. Henry M. Nutzhorn, opposed.

PITNEY, V. C. (orally). Mr. Nutzhorn was solicitor for the defendants Clark & Spencer, who obtained a decree for a considerable sum of money,-about $4,000. Subsequently that decree was assigned by Clark & Spencer to Mr. Edwards' client, and Mr. Edwards moved to substitute his firm as solicitors in place of Mr. Nutzhorn; the object being to enable them to control the fund in the hands of the sheriff or in court, which fund is the result of Clark & Spencer's decree. Mr. Nutzhorn objects to the substitution, unless his bill for services is paid, in addition to the taxed bill of costs. Mr. Edwards is willing to pay the taxed bill of costs, and also the extra services, but the parties disagree as to the amount of those extra services. The case has been presented as though Mr. Nutzhorn's rights must stand or fall upon the question of his removal as solicitor, and the substitution of Mr. Edwards' firm in his place. In this both parties are wrong. The client has at all times an absolute right to change his solicitor; but he cannot, in my judgment, in so doing, deprive his solicitor of his right to compensation, or injure or destroy any lien which the solicitor has upon the fruit of his labors. Here it is known to the court that Mr. Nutzhorn has been active in procuring this decree, and there is a fund in court which is the fruit of his labors; and upon that fund he has a lien for the value of his services, as well as for the taxed costs. And, while I think that he cannot resist a motion to substitute a solicitor in his place. that motion cannot be granted except upon terms that Mr. Nutzhorn's lien upon the fund shall not be disturbed thereby.