“Well, let us settle about the others first.”
“Well, what do you do first to get your damages? I mean under what Act do you proceed?”
“Under what in England is called Lord Campbell’s Act (9 & 10 Vic. ch. 93), the Canadian Act[561] is a transcript of that; and a similar statute has been introduced into most of the States of the Union, to obviate that most heathenish of maxims actio personalis moritur cum personam. Our Act provides that when death shall be caused by the wrongful act, neglect or default, of any person, such as would (if death had not ensued) have entitled the party to an action, in every such case an action may be maintained by the executor or administrator of the party injured, and the jury may give such damages as shall be proportioned to the injury resulting from the death of such party, to be divided among the members of his family as the jury shall direct. But, of course, if any negligence of the party himself, or those in charge of him, contribute directly to the injury, there can be no remedy.[562] Have twelve months elapsed since the death?”
“No,” was the response.
“All right.”
“What damages shall I claim?”
“Only such as will compensate for the pecuniary loss sustained,”[563] I returned.
“But one of my wives—the richest one, too,—went into most awful fits over the death of her husband, and has not been quite compos mentis since; and I want something to solace her for her mental sufferings.”
“You cannot get it in this country, nor could you in England either. If the jury were to inquire into the degree of mental anguish which each member of a family suffers from a bereavement, then not only the child without filial piety, but a lunatic child and one of very tender years, and a posthumous child, on the death of the father, although getting something for pecuniary loss, would not come in pari passu with other children, and would be cut off from the solatium. If a jury were to proceed to estimate the respective degrees of mental anguish of a widow and twelve children from the death of the pater-familiás, a serious danger might arise of damages being given to the ruin of the defendants: especially would the damages be disastrous if all the relatives mentioned in the fifth section of the Imperial Act (the sixth of the Canadian), the father and the mother, grandfather and grandmother, stepfather and stepmother, grandson and granddaughter, stepson and stepdaughter, not only got compensation for their pecuniary losses, but solatiums for their shattered affections, blighted expectations and broken hearts.”[564]
“That is too bad,” said Jones, “for I am sure the Scotch law gives a solatium for wounded feelings, even where the death of the man, instead of being a loss, is a gain to the family, owing to his bankruptcy or dissipated habits.”[565]