Wrongful Death
![handle is hein.journals/walq1973 and id is 334 raw text is: WRONGFUL DEATH
FREDERICK DAVIS*
The average person would think it ridiculous to question the right of
a widow to recover damages from a person whose irresponsible con-
duct had caused the death of her husband. After all, if the man had
lived he would have been able to sue for his personal injuries. One needs
only some common sense to conclude that, when a husband dies, the
wife should be able to recover for her loss.
In fact, this is the way the law began.1 Scholars have pointed out
that under early Saxon law a person responsible for the death of another
was required to pay wergild as compensation to those deprived of the
deceased's support.'
The matter became confused, however, when it was decided to make
killing a crime as well as a tort. Under English law, the killing of one
of the Crown's subjects was made such a grievous offense against the
Crown that all of the assets of the person responsible for such an out-
rage escheated to the Crown.' In such an assetless condition the de-
fendant was hardly worth suing. On top of this, the English law de-
veloped something called a merger doctrine, which seemed to declare
* Edward W. Hinton Professor of Law, University of Missouri-Columbia.
&A., 1948, Yale University; J.D. with specialization in international affairs, 1953,
Cornell University; LL.M. (honours), 1954, Victoria University of Wellington
(N.Z.). Member, New York and Missouri Bars.
1. See Hay, Death as a Civil Cause of Action in Massachusetts, 7 HAv. L.
REV. 170, 171 (1893).
2. 1 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 46 (2d ed. reissued
1968). The very early common law obligation to pay some compensation to the
relatives of the deceased victim of a wrongful act appears to have developed from an
official condonation of the practice of buying off those capable of exercising the
prerogative of revenge. T. PLUCKNET, A CONCISE HISTORY OF THE COMMON LAv
425 (5th ed. 1956). A good summary of the various histories and explanations is
found in Smedley, Wrongful Death-Bases of the Common Law Rules, 13 VAND.
L. REV. 605 (1960).
3. S. SPEISER, RECOVERY FOR WRONGFuL DEATH 5 (1966) [hereinafter cited as
SPEISER] (collecting authorities). Contra, Grosso v. Delaware, L. & W. R.R., 50
N.J.L. 317, 318, 13 A. 233, 234 (1888) (pointing out that forfeiture of the assets of
a person responsible for death ensued only in certain types of deaths and that, how-
ever logical it is to assume that forfeiture of assets explains the prohibition of a
civil action, the case law does not support it).
327](ViewImageLocal?handle=hein.journals/walq1973&div=23&collection=&method=preview&ext=.png&size=3)
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Wrongful Death
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