I am not in accord with the majority in holding that appellant executrix may not recover judgment for the amounts she seeks, based upon hospital expenses and doctors' bills. It is clear that the recovery sought for pain suffered by the deceased is not recoverable, and that the $250 covering lost wages should be held consequential damages, and for that reason judgment for that item may not be recovered. It seems to me, however, that a different rule should apply to the hospital expenses and doctors' bills.
Rem. Rev. Stat., § 1519, quoted in the majority opinion, allows a recovery on behalf of the estate of a deceased person, interalia, "for trespass committed on the estate of the deceased during his lifetime." Section 1520, also quoted in the majority opinion, confers certain rights of action against the personal representatives *Page 293 of a wrongdoer. This section refers to "any trespass on the real estate" by the wrongdoer.
Section 1519 was first enacted in 1854 (Laws of 1854, p. 291, § 143). At this time, similar statutes were in force in several states, but apparently gave to the personal representative of a deceased person the right to maintain an action for trespass committed on the real estate of the deceased during his lifetime. In this particular, our statute differs from those of other states. Section 1519 was reenacted without change as Laws of 1917, chapter 156, p. 685, § 149. While it is difficult to understand why a recovery by an administrator should be allowed on a broader basis than a recovery against a personal representative, that is a matter for legislative determination.
The statute must be given effect according to its terms. The word estate suggests several different ideas. The word is sometimes used in referring to rank, office, or social position. It is often used as referring to land, or land and the improvements thereon. It is also used in referring to man's possessions, real or personal, a man's estate suggesting the aggregate of that which is his.
In 21 C.J. 914, title "Estates,", § 1, the definition of the word is summed up as follows: "A man's estate is that which he can dispose of at his pleasure."
I am in accord with the majority in its holding that purely consequential damages in such a case as this may not be recovered, but I am convinced that the items of hospital expenses and doctors' bills do not fall within that classification.
Owing to the peculiar wording of our statute, decisions from other jurisdictions are not particularly helpful. It seems to me, however, that such a statute, being remedial in its nature, should not be strictly construed. *Page 294
In the case of Noice v. Brown, 39 N.J.L. 569, it appeared that a widow, as administratrix of the estate of her deceased husband, sued the defendant for the seduction of her intestate's daughter, the alleged seduction having taken place during the husband's lifetime. The court discussed the statute of 4 Edw. Ch. III, chapter 7, conferring certain rights of action upon executors, calling attention to the fact that, while by its terms the statute applied only to goods and chattels carried away during the testator's lifetime,
". . . by an equitable construction of the statute, an executor had the same action for any injury done to the personal estate of the testator in his lifetime, whereby it became less beneficial to the executor, as the testator himself might have had, whatever the form of the action might be. Wheatly v. Lane, 1 Saund. 217, b, (notes); Lockier v. Paterson, 1 C. K. 271."
The court also noted that the statute did not apply to injuries strictly to the person, nor to injuries to real estate, and observed that, in the case before the court, the plaintiff's right must rest upon the act of the legislature of New Jersey of March 17, 1855, which provided that
"`Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate, against the trespasser or trespassers, and recover their damages in like manner as their testator or intestate would have had if he or she was living.'"
The court continued:
"Following the liberal interpretation of the English statute, we have held, in this court, that the word `trespass,' in our act, is synonymous with `tort.' Ten Eyck v. Runk, 2 Vroom 428;Hayden v. Vreeland, 8 Vroom 372.
"The description, `torts to the person and torts to property, real and personal,' is sufficiently comprehensive to embrace every possible injury that does not *Page 295 arise out of contract, unless injuries to the person are narrowed by construction to signify injuries to the body.
"The offences of seduction and libel, where no special damages are laid, are, obviously, strictly personal, being remedies, mainly, for wounded feelings. Feeling being as much a part of the person as the physical frame, no reason appears why an injury to the former is not as much a tort to the person as an assault would be.
"The wrong is of a twofold character, wounding the person in his feelings, and affecting his property rights, resting, as it does, on the technical ground that, by the injury, he lost a service of some pecuniary value. The loss of the service would affect the estate in the hands of the personal representative, and should give equal support to an action by him. The damages being partly punitive, the action should survive, on the ground of public policy, that the punishment may fall on the wrong-doer. The case is within the language, and also within the spirit of the act."
The court held that the complaint stated a cause of action and was not obnoxious to demurrer.
While the New Jersey statute expressly provided that a personal representative should have a right of action for trespass to the "person or property" of his intestate, which, of course, would cover the situation presented in the case at bar, the court gave to the statute a liberal construction, consistent with its manifest purpose.
It would seem that the first portion of § 1519 provides for a right of action on the part of the personal representative for any damage to the goods of the deceased. If the last clause of the section does not provide for the maintenance of such a cause of action as that now under discussion, it is not easy to understand what causes of action it would cover, save one for damage to real estate, and the section is not limited by its terms to such causes of action. We must consider that *Page 296 the legislature, by omitting the word real intended to give a broader meaning to the word estate than the word would have had, had it been limited by the word real.
In my opinion, § 1519 should be so construed as to permit appellant's recovery for the hospital expenses and doctors' bills incurred by her testator during his lifetime, and by which the estate of her testator is diminished.
In so far as the majority opinion denies recovery for the two items referred to, I dissent.