who shall be entitled to one half the amount collected in those cases, where a person has sold intoxicating liquor to one already intoxicated or in the habit of becoming so.

§ 484. Civil rights acts-Damages and penalties.—Where the plaintiff, a colored female, was refused passage on a street car of defendant, the conductor refusing to stop, saying, "We don't take colored people in this car," and it was also proved that there was ample room for the plaintiff, and that she was provided with the usual passage tickets and was ready and willing to pay her fare, it was decided the case was not one for exemplary damages since there was no proof of special damage or of wanton or violent conduct on the part of defendant, and that if the plaintiff was wrongfully excluded from the car, such a violation of her rights entitled her to nominal damages which the law would presume in the absence of proof of actual damages. But the denial of such privilege when not on the ground of race or color does not subject the defendant to the statutory penalty.10

Carrier v. Bernstein, 104 Iowa, reason of race, color and condition, 572; 73 N. W. 1076. see 10 Century Dig. columns 2133

9 Pleasants v. North Beach & M. 2143, covering the following subjects: R. Co., 34 Cal. 586. Sec. 714. "In general; sec. 715. 10 Cully v. Baltimore & O. R. Co.," Public conveyances; 1 Hughes, 536; Fed. Cas. No. 3,466. As to allegations for denial of privileges of inn, see Fruchey v. Eagleson, 15 Ind. App. 88; 43 N. E. 146. As to allegation of wrongful discrimination on account of color and race, see Redding v. South Carolina R. Co., 5 S. C. (5 Rich.) 67, decided 1873. As to discrimination by 556

sec. 716. Marriage ; sec. 717. "Occupa tion and employment; " sec. 718. Inns and Theatres;" sec. 719. "Residence; sec. 720.Competency as witness;" sec. 721. “ Homestead;" sec. 722. "Punishment of crime;" sec. 723. “Public schools;" sec. 724. " Constitution of juries." See also 10 Century Dig. cols. 51-52, sec. 12.

TITLE V.

DAMAGES FOR CAUSING DEATH.

CHAPTER XXIII.

DAMAGES FOR CAUSING DEATH-GENERALLY.

§ 485. Death by wrongful act, etc.-Preliminary remarks. Prior to the enactment of what may be generally

designated as the death loss statutes, there were certain rules of law whereby personal rights of actions died with the person injured. We shall therefore briefly notice these legal principles or rules, the distinction between torts and contracts in connection therewith, the election of remedies, the common law, the death loss statutes generally, and the nature and construction thereof. It may also be stated here, that while these legislative enactments are perhaps an attempt to accomplish the same general purpose of affording a remedy against the person responsible for the wrongful or negligent killing of another, nevertheless they differ widely in their terms, many of them having evidently been enacted to meet certain conditions peculiar to the especial jurisdiction, or to remedy what may have been considered defects in pre-existing statutes, either of the same or other jurisdictions. Thus there exist statutes relating to death caused by the use of deadly weapons; by wilful or grossly negligent acts; by killing in a duel; death occasioned by railroad corporations, by defective highways, by negligence in operating mines, by negligence, etc., of certain common carriers; a remedy by indictment, an action in the name of the state to the use of specified persons and the general action for damages by designated legal representatives or beneficiaries. Again, certain of the statutes use specific terms as to the measure of recovery which are similar in a few states, while in the other jurisdictions no measure of damages is specified, and in still others some of the elements of damages are mentioned. A difficulty therefore exists in formulating or applying any general governing rule. We shall, however, classify as far as we deem warranted and possible, the statutes having similar provisions and those of a general and special or peculiar character, stating the rules applicable under each subdivision.

§ 486. Actio personalis moritur cum persona.-The rule that a personal right of action dies with the person1 was applied by Blackstone to actions arising ex delicto for wrongs actually done or committed by the defendant as trespass, battery and slander, and he declares that such actions "never shall be revived either by or against the executors or other representa

1 Noy Max. 14; Broom's Leg. Max. (7th Am. Ed.) *909.

tives." At common law the rule actio personalis was held to be peculiarly applicable to actions in form ex delicto. "It being a general rule that an action founded in tort and in form ex delicto was considered as actio personalis and within" the maxim above given.3

§ 487. Actio personalis-Continued-Tort or contractElection of remedies.-Actions on tort abate and those on contract survive as a general rule, on the death of the injured party unless there is a statutory provision to the contrary. In applying this rule, however, regard should be had rather to the substance than to the form of the action. And it is declared that if the damages are merely incident to the injury, that being personal and the proximate cause of the damages, the action dies, otherwise where the breach of the contract itself is the primary cause of the damage and the personal injuries are mere incidents of the breach. And even though a contractual relation

8 Broom's Leg. Max. (7th Am. ed.) *909, citing Wheatley v. Lane, 1 Wms. Saund. 216 n (1).

23 Black. Comm. (Cooley's ed. | Broom's Leg. Max. (7th Am. ed.) 1899) 302. *909. Although there be an express contract to furnish a skillful, trained, competent nurse to a patient, and an action for tort for Webber v. St. Paul City Ry. Co., breach of duty might lie, yet an ac97 Fed. 140, case of passenger on tion can be maintained for the breach street railroad holding that a per- of contract. Ward v. St. Vincent's sonal representative of one whose Hospital, 39 App. Div. (N. Y.) 624; death was caused by an injury re- 57 N. Y. Supp. 784; 6 Am. Neg. Rep. ceived as such passenger could not 164, rev'g 50 N. Y. Supp. 466; 23 maintain an action under Gen. Stat. Misc. (N. Y.) 91; 30 Chic. Leg. News, Minn. 1894, sec. 5912, which applied 258; 5 Det. L. N. (No. 4). Action alike to contract and tort, said suit for breach of contract for carriage not being in accordance with the and injury to passenger for damages provisions of sec. 5913. As to the prior to death survives to personal rule actio personalis “it has been representatives. Kelley v. Union observed that this maxim is not ap- Pac. R. Co., 16 Colo. 455; 27 Pac. plied in the old authorities to causes 1058; 11 Ry. & Corp. L. J. 10. False of actions on contracts, but to those representations as to real estate sold; in tort which are founded on mal- action survives death of plaintiff feasance or misfeasance to the per- under Cal. Civ. Code, sec. 954, providson or property of another; which ing for such survival to the personal latter are annexed to the person and representatives upon the owner's die with the person, except where death of a thing in action arising the remedy is given to the personal out of the violation of a right to representative by the statute law." property. Henderson v. Henshall

exists, yet if the plaintiff's case depends as to a considerable portion thereof upon a breach of duty outside of and not a part of the contract, an action lies in tort, although said duty is dependent upon and connected with the contract."

§ 488. Actio personalis-Tort or contract-Election of remedies-Continued.-It has been held in New York that an action against a common carrier may be brought in contract for an injury resulting in death, for the benefit of decedent's personal representatives. And a cause of action is held to survive to personal representatives of a husband, who has brought suit for a personal injury to his wife, per quod servitium amisit, the defendant being a carrier of passengers. It was said, however, that the action would have abated at common law on plaintiff's death, the action being grounded in tort. So, also, a cause of

66

& H. R. Rd. Co., 87 N. Y. 382, 390, 398, per Finch, J.

6 Doedt v. Wiswall, 15 How. Pr. (N. Y.) 125, aff'd 15 How. (N. Y.) 145; Yertore v. Wiswall, 16 How. Pr. (N. Y.) 8. But see Hegerich v. Keddie, 99 N. Y. 258, rev'g 32 Hun (N. Y.), 141; 5 Civ. Pro. (N. Y.) 228. As to survival and acts of 1847 and 1849, see Baker v. Bailey, 16 Barb. (N. Y.) 54; Dickens v. N. Y. Cent. Rd., 28 Barb. (N. Y.) 41; Safford v. Drew, 3 Duer (N. Y.), 627; 12 N. Y. Leg. Obs. 150.

(U. S. C. C. App. 9th Cir.), 54 Fed. 320. Action for damages for trespass on land survives to personal representatives of deceased owner. Musick v. Kansas City S. & M. R. Co., 114 Mo. 309; 21 S. W. 491. That actions ex contractu do not survive, see Vittum v. Gilman, 48 N. H. 416. 5 Church v. Ante-Kalsomine Co., 118 Mich. 219; 76 N. W. 383; 5 Det. L. N. 486. Ordinarily the essence of a tort consists in the violation of some duty to an individual, which duty is a thing different from the mere contract obligation, and omission to perform a contract obligation is never a tort unless that omission is also an omission of a legal duty. That legal duty may arise from circumstances not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow to respect his rights of property and person and to refrain from invading them by force or fraud." Ander was a passenger on a railroad train. son's Law Dict. title Tort," See Bradshaw v. Lancashire & T. citing Rich v. N. Y. Cent. R. Co., 44 L. J. C. P. 148; L. R. 10

p. 1040,

66

7 Cregin v. Brooklyn Cross Town Rd. Co., 56 How. Pr. (N. Y.) 32, aff'd 75 N. Y. 192; 56 How. (N. Y.) 465, aff'g case cited in numerous cases. Action survived, however, under New York statutes as to survival of actions in case of wrongs to property rights, or interest of another. Examine Sweet v. Metropolitan St. Ry. Co., 18 Misc. (N. Y.) 355; 41 N. Y. Supp. 549. That executrix might sue in contract for death consequent upon injury to her husband, who