“Yes,” I replied, “but the Scotch are always more liberal than other people; they grant a solatium to a man injured in his happiness and circumstances by the death of his wife and child, whereas in England a widower will not get anything unless the death of his spouse causes him some pecuniary loss;[566] it being a pure question of pecuniary compensation, and nothing more, which is contemplated by the Act.[567] Nor, I believe, can a husband recover in New York State for the death of his wife.[568] But where the damages are for the next of kin, the services of the deceased mother in the nurture and instruction of her children, had she survived, may be properly considered.[569] I wonder what is the rule as to the solatium in the Republic—let us see.”
So saying, I reached down a most useful book on Railways, by Chief Justice Redfield, of Vermont, and concerning “the great learning, research, and power of reasoning displayed” in which, Lord Chief Justice Cockburn speaks with expressions of admiration.
“Here it is: ‘There seems no doubt, according to the best considered cases in this country, that the mental anguish which is the natural result of the injury, may be taken into account, in estimating damages to the party injured in such cases, although not of itself the foundation of an action.’”[570]
“It seems,” remarked my friend, “somewhat strange that in Canada a person’s feelings should make no difference; for one of my widows feels her loss deeply, whereas the other is evidently one of those ‘viders’ against whom Samivel Veller, Senior, would have warned his hopeful boy.”
“Both are entitled to the same compensation, although one was as closely joined in sympathy and spirit to her lost spouse as was Chang to Eng, in the flesh; and the other was the Elizabeth referred to in the will of that unfortunate wretch who died in London, in 1791. I must read you that will, though it is rather beside the subject, for it is a perfect model for hen-pecked husbands to follow; here it is. ‘Seeing that I have had the misfortune to be married to the aforesaid Elizabeth, who ever since our union, has tormented me in every possible way; that heaven seems to have sent her into the world solely to drive me out of it; that the strength of Samson, the genius of Homer, the prudence of Augustus, the skill of Pyrrhus, the patience of Job, the philosophy of Socrates, the vigilance of Hermogenes, would not suffice to subdue the perversity of her character; that no power on earth can change her; seeing we have lived apart during the last eight years, and that the only result has been the ruin of my son, whom she has corrupted and estranged from me: weighing, maturely and seriously, all these considerations, I have bequeathed and I do bequeath, to my said wife Elizabeth, the sum of one shilling, to be paid to her within six months of my death.’ But to return; as to damages, I see that in Massachusetts by statute[571] the passenger carrier is subject to a fine, not exceeding $5,000, to be recovered by indictment, to the use of the executor or administrator of the deceased for the benefit of his widow and heirs. Under this Act, if the death is instantaneous and simultaneous with the injury, as no right of action accrues to the person injured, there is none to which the Act can apply;[572] but it is sufficient if one does not die for fifteen minutes, although insensible from the first.[573] In Pennsylvania, the jury were told to estimate damages ‘by the probable accumulations of a man of such age, habits, health, and pursuits as the deceased, during what would probably have been his lifetime.’[574] In Maryland the jury was directed to give such damages as would yield the family of the deceased the same support as they would have obtained from the labor of the father during the time he would probably have lived and worked, and that they might consider the age, health, and occupation of the man killed, and the comfort and support he was to his family at the time of his death.”[575]
“I see,” said Tom, who seemed unwilling that I should do all the talking, “that our own Chief Justice Robinson, on one occasion, confessed himself utterly at a loss to make a satisfactory computation of the amount of damages to be awarded, or of the pecuniary loss sustained by a widow and her children through the death of the head of the house: he said he had no means of determining whether they would have been better off if the father’s life had run its natural course, or not; it was mere conjecture. The father might have become extravagant or intemperate, and squandered his property; or from too great eagerness to grow rich, might have lost it by grasping at too much, or might have died from natural causes within a year or a month, leaving his family no better off than he did leave them when carried away by the sad accident.[576] And I think that I would be equally puzzled were I on a jury; I don’t see how in the world a jury, except by drawing lots, can calculate the damages arising from the loss of the income, and of the care, protection, and assistance of the father.”
“Yes, it must be rather a nice calculation.”
“Suppose,” continued Jones, “there was an accident to a train containing an archbishop, a lord chancellor, a bank director, a lunatic, a wealthy but immoral man, and one virtuous but bankrupt, and all these respectable persons came to final grief: how could any ordinary jury estimate the pecuniary value of the conjugal and paternal care, protection, and assistance of each of these.”
“You need not put such an unlikely case,” I said, “merely suppose that there were together one who—
‘scorned life’s mathematics,
Could not reckon up a score,
Pay his debts, or be persuaded
Two and two are always four.
That another was exact as Euclid,
Prompt and punctual, no one more.’”