Wrongful Death--Bases of the Common Law Rules
![handle is hein.journals/vanlr13 and id is 625 raw text is: VANDERBILT LAW REVIEW
VOLUmE 13 JUNE, 1960 NUMBER 3
WRONGFUL DEATH-BASES OF THE COMMON LAW RULES*
T. A. SMEDLEY**
One of the oft-sung glories of the English common law is the
vitality of its many rules which evolved originally from ancient cus-
tom, usage, tradition and experience. This truly amazing vitality has
the virtue of imbuing the law with stability, of providing legal sanc-
tion for established commercial practices, of protecting vested property
interests, and of furnishing some measure of predictability of de-
cisions. Unfortunately, it also serves to perpetuate the force of some
rules far beyond the period of their usefulness and to maintain their
influence after the reason for their existence has been long forgotten.'
Such was the case in regard to two common law principles which
for century after century prevented any recovery of damages for
bodily injuries wrongfully inflicted on a person and resulting in his
death. These principles, overlapping in their effect and often con-
fused in their application, but not identical, are: (1) actio personals
moritur cum persona-a personal action dies with the person (of
plaintiff or defendant), and (2) the killing of a human being is not a
ground for an action for damages. Due to these two restrictions,
when a person died either instantly or after an interval of time as a
consequence of the wrongful act or omission of another, the wrong-
doer could not be held liable either (1) to the victim's estate for
damages sustained by the victim before death or for damages to his
estate due to the loss of life, or (2) to third parties with interests
in the life of the victim for damages for their losses resulting from his
death.2 The modern law regarding recovery of damages for wrongful
death represents the results of a long judicial and legislative process
of qualification, limitation and finally abrogation of these principles.
* This is the first of a series of articles to be published by the author on
wrongful death and survival of personal injury actions.
** Professor of Law, Vanderbilt University; Director, Race Relations Law
Reporter; member of the Illinois and Virginia Bars.
1. What may have been the real reason for the establishment of this rule
of the common law [denying recovery for wrongful death] we may not be
able to discover .... In that case the rule must be held to be one originally
created for some legal reason which in the mutation of things has crumbled
away, leaving the rule so crystallized as to be immovable except by legis-
lative power .... It is in this sense I think that the rule has been accepted
as law in this country. Grosso v. Delaware, L. & W. R.R., 50 N.J.L. 317, 13
Atl. 233, 235 (1888).
2. MCCORMICK, DAMAGES § 93 (1935); 4 SUTHERLAND, DAMAGES 3694 (3d ed.
1904); TiFFANY, DEATH By WRONGFUL ACT § 1 (2d ed. 1913).](ViewImageLocal?handle=hein.journals/vanlr13&div=34&collection=&method=preview&ext=.png&size=3)
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Wrongful Death--Bases of the Common Law Rules
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