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would be rather remote, but they would be none the less proximate and measurable, and by no means lacking in the pecuniary element deemed essential in estimating the damages in this class of
While the remoteness of the grounds of recovery has probably caused the courts to regard with disfavor any further attempt to extend the scope of the measure of damages to the mental or physical sufferings of relatives of the deceased induced through shock, yet the evolution of the ethics underlying the entire subject of damages must before no very late day infallibly influence them to modify the rigidity of their present position, just as they have done in kindred ramifications of the same subject. For instance, in cases where infants of very tender years suffered death by negligence, the first impulse of the courts was to deny to the next of kin any special pecuniary damages, and in the majority of cases no special pecuniary damages could be directly proved, and yet so early a case as Ihl v. 42d St. R. R. Co. (47 N. Y. 37) the court made use of the following broad reasoning: "The absence of proof of special damages to the next of kin, resulting from the death of the child, would not have justified the court in nonsuiting the plaintiff, or in directing the jury to find only nominal damages. * ** Except in very rare instances it would be impracticable to furnish direct evidence of any specific loss occasioned by the death of a child of such tender years." The nature of the subject here warranted the courts in allowing freedom to juries in estimating special damages, however remote. Now in cases where relatives of the deceased suffer shock and nervous prostration, necessitating calling in the physician, there is direct proximate proof of special damages, capable of definite apportionment. Section 1904 of the Code of Civil Procedure in its language appears broad enough to include the awarding of such damages to the relatives of the deceased, and it avoids the use of the phrase "pecuniary damages," rightly regarding the "injuries" in that sense. It must be remembered that there is a vast difference between the concept of solatium and damages to the relatives of the deceased, causing them specific expense. Strictly speaking, at present the maxim actio personalis (poenalis?), etc., has been extended far enough, but the element of a penalty or solace to wounded feelings is not present in this view of widening the doctrine of damages to specific monetary loss to the next of kin.
cease, who would succeed as next of kin, the court held strangely enough that this latter source of loss was not an element of pecuniary damage, placing its decision upon the grounds that it was too vague to be considered. Judge Smith disagreed, however, in a dissenting opinion with this part of the view of the majority of the court. In the case of Whitford against the Panama R. R. Co. (23 N. Y. 465 and 469) the court says: Although the action can be maintained only in the cases in which it could have been brought by the decease if he had survived, the damages are nevertheless given upon different principles and for different causes. In an action brought by a person injured, but not fatally, by the negligence of another, he recovers for his pecuniary loss and in addition for his pain and suffering in mind and body, while under the statute it is not the recompense which would have belonged to him which is awarded to his personal representatives, but the damages are to be estimated with reference to the pecuniary injuries resulting from such death to the wife and next of kin. Here the phrases "pecuniary loss" and “pecuniary injuries" are of course not so objectionable as the phrase "pecuniary damages" for obvious reasons, and the decision is unquestionably sound in principle, but where is the proper limitation to be set to such a broad doctrine? In the anxiety of the courts to preserve some of the old landmarks of the common law limiting the recovery, of damages in negligence cases resulting in death, they have frequently narrowed the doctrine unreasonably; at other times broadened it unwarrantably. When the courts have almost universally held that "the widow and next of kin cannot recover for mental and physical sufferings of the deceased," they have done so properly, and the grounds of that doctrine are based upon common-law concepts, inasmuch as it assumes that the widow's and next of kin's right of recovery is founded upon the generic ground of compensation for actual loss suffered, and allows nothing to the plaintiffs because of injuries to the deceased merely as injuries or suffering. The reason for it is clear, as it would be allowing vindictive or exemplary damages to the personal representatives. As to the generally acknowledged rule that no damages can be recovered, under the statute, for mental suffering and grief occasioned by the death of the deceased, a serious doubt arises as to whether, under the application of the legal principles governing what the courts have termed pecuniary damages, in cases where the sudden shock of an announcement of injuries or death to a member of a family produces nervous prostration and sickness, whether such shock and nervous prostration with its attendant consequences cannot properly be considered as an element of damages, measurable directly by a pecuniary standard. Of course it may be conceded that such damagestion of the remains.
ALEXANDER HIRSCHBERG. MT. VERNON, N. Y., May 28th, 1900.
A murderer at Williamsport, Pa., who was executed June 5th, sold his body to the manager of a local theater for exhibition purposes. The price he received was a new suit of clothes in which to be hanged, a coffin and a grave for the final recep
THE NEW COURT OF APPEALS
EDWIN A. BEDELL.
HE of Appeals, on the 5th inst, an
has had a large experience in the law, and is an expert in the law of copyright and trade-mark. Mr. Bedell takes up the record of reports with volume 164. His predecessor reported cases filling 16 volumes, from No. 147 to No. 163. Reporter Sickles, who came before Smith, issued ΙΟΙ
Trounced the appointment of Edwin A. Bedell volume.
as state reporter, to succeed Edmund H. Smith, who at the beginning of the year resigned the position on account of ill-health. Mr. Bedell is the son of Edwin T. and Rachel A. Bedell, both of whom died while he was very young, and was born in Albany on the 9th of October, 1853. He was reared in the home of his grandfather, a
EDWIN A. BEDELL.
prominent citizen of Albany, the late Philip Phelps, who was for more than 50 years the deputy comptroller of the State, and well known not only in financial, but also in religious circles throughout the country. Mr. Bedell's school life was begun under Prof. Anthony, at the old Albany Classical Institute, continued at the Boys' Academy and completed at the Western College of the Reformed Church in Michigan, of which his uncle, Rev. Philip Phelps, Jr., was president. His preparation for college was under the private tutorage of Prof. Swan. Graduating in 1873 as the salutatorian of his class, he entered the Albany Law School and also the law office of Peckham & Tremain, and was admitted to the bar of Albany in the spring of 1874. After spending some time in travel he began the practice of his profession. He served five years as one of the assistants to the attorney-general of the State, leaving the office of the attorney-general in 1889 to become one of the assistant reporters of the Court of Appeals. He
In 1883 he married Caroline E., the elder daughter of Hon. Hiram E. Sickles. When scarcely out of his teens Mr. Bedell began to devote his leisure time to the study of sacred music in all its branches, and later he began the study of hymnology. For many years he has been an active member of the Madison Avenue Reformed Church, and for more than twenty years has had charge of its music and been its organist. Some years ago he compiled a hymnary for the exclusive use of his Sunday school; this was so successful that in 1891 he prepared a "Church Hymnary" for the church at large, which has met with great success and approval throughout the religious world. Mr. Bedell is a member of the Fort Orange Club, a man of literary tastes, and a gentleman exceedingly popular at home and abroad.
Edmund H. Smith, the retiring reporter, is the son of the Hon. James C. Smith, formerly judge of the Supreme Court, retired on account of age. Mr. Smith was born at Canandaigua, N. Y., about 45 years ago, and came to Albany from Rochester to take the position of clerk of the Second Division of the Court of Appeals. Four years ago last October he was appointed state reporter, and performed its exacting duties with singular fidelity, conscientiousness and acceptability until he was compelled to resign by reason of impaired health.
ALBANY LAW SCHOOL COMMENCEMENT.
HE commencement exercises of the Albany the institution, were held on the 31st ult. in Odd Fellows' Hall, and 32 young men and one young woman received their diplomas from the president of Union University, Rev. Dr. A. V. V. Raymond. Hon. Amasa J. Parker, president of the board of trustees, presided, and on the stage were seated Postmaster-General Charles Emory Smith, who made the address to the graduating class; Hon. J. Newton Fiero, dean of the Law School; Rev. A. V. V. Raymond, Hon. D. Cady Herrick, C. J. Buchanan, Marcus T. Hun, C. E. Argersinger, Fletcher Battershall and other members of the board of trustees and of the faculty. There was a large attendance. The members of the graduating class wore caps and gowns, and occupied seats directly in front of the stage.
POSTMASTER-GENERAL SMITH'S ADDRESS.
Gen. Parker introduced Postmaster-General Smith, who addressed the graduating class as follows:
“Gentlemen of the Graduating Class: I cannot welcome you as a lawyer to the lawyer's ranks. It is not my good fortune to speak as a member of the honorable guild. But, as a disinterested layman, fully appreciating its great position and its glorious opportunities, I can bid you God-speed as you enter upon a noble profession, which has been so closely identified with the intellectual, social and moral progress of the race, and with the steady advance of civil liberty.
"One most agreeable duty falls to me at the outset. I bring you the filial and fraternal greetings of the president of the United States. Like you, he is a graduate of the Albany Law School. | Like you from this hour, he is enrolled among the alumni of this honored institution. Here he cultivated those lofty attributes of mind and character and nurtured those just principles of action which, in an administration of great deeds and world-wide leadership, have shed new lustre on the republic. With grateful memories of his early association here, he sends loyal and loving sentiments of good will and best wishes to all who, like him, honor and revere this cherished alma mater.
speech, impressing as much by what he was as by what he did. Judge and senator, he was the incarnation of judicial poise and dignity, and he would have lent distinction to the toga in the most illustrious company of Roman fathers in the palmiest days of the Capitoline Hill. Had justice bearing the evenly balanced scales been symbolized by a man, his robed and majestic figure would have been the model. And then there was Amasa J. Parker, father of your president of to-day, who worthily wears the honored name. Accomplished and courtly, rugged in thought, singularly graceful and polished in deliverance, adroit and skilful in advocacy, but candid and dispassionate, Judge Parker presented the highest type of the suave and forceful lawyer of the old school. Clarum et venerabile nomen his shade hovers over his cherished school and inspires you to-night.
"If time permitted, I might speak of others who extended and perpetuated that early group of legal guides. Standing on the rolls of this institution, you join the company of the great worthies and you go forth with the best traditions into the ranks of your chosen profession. The lawyer's mission is constantly broadening. is constantly broadening. His sphere of action and field of usefulness and range of influence are steadily expanding. His opportunities are greater to-day than ever before. The open pathways of success are more varied, if not more alluring. The court-room was formerly the chief arena of the lawyer's activity; but now his talents are largely employed in creating the instrumentalities of business and commerce. Then he was the genius of contention; now he is often the minister of con
"Though not a lawyer, there is perhaps less incongruity in my presence on this occasion than might at first appear. For several years a trustee of Union University, I held an indirect official, if not a direct professional, connection with its department of law. Returning, as I am, to my old and beloved home, looking again upon familiar and precious scenes, clasping once more the hands of treasured friends of my youth and early manhood - alas, how many have joined the majority! - teeming recollections of the past come throng-struction. Then he was altogether the orator of ing upon me, and I am carried back to the bright and eager days around which cluster the hopes and joys of the springtime of life.
"Fragrant among these recollections are the still lively memories of the distinguished men and the great instructors who stamped their impress on this law school and gave it national renown. They were my seniors by many years, but I know them well. No loftier characters or nobler exemplars could be held up as ideals for the young men of our day. How vividly I recall the wise, practical, hard-headed Amos Dean, with his robust form, his whole-souled laugh, his genial and beaming personality and his kindly and helpful disposition. With him the law was a jealous mistress, and he was supremely devoted to it. His sympathetic nature, his personal interest in his students, and his masterful faculty of teaching made him at once the successful instructor and the paternal guide of his boys, and as the organizing and directing mind of the school his judicious counsel was the touchstone of many a brilliant career.
"Then there was the benignant and weighty Ira Harris, of stately and imposing proportions, placid in bearing, serene in judgment and deliberate in
the forum; now he is not less the architect of the
'The tendency and the inevitable necessity of modern conditions is the division of labor and the development of specialties. We see it in every walk of life and in every branch of human endeavor. The watch you carry is not the work of any one artisan. Wheel, spring, balance, dial, case, all come from different hands. The same thing is true in scientific and professional achievement. In medical and surgical practice there is the specialist for the eye, another for the ear and another for the throat. So in the wide range of the law there are the tendencies and the rewards of specialism, and while the general practice must always offer its
attractions, the demands and the inducements of exceptional equipment in special fields will present their appeal. But underlying all are the same elemental principles which are foundation of the broad temple of law with all its courts and corridors, and those principles, based on right and justice and equity, are the muniments and the safeguards of the social and political fabric.
the less true that the value of a legal training both in legislative and administrative service cannot be over-estimated, and that the preponderance of lawyers in public life grows not only out of their own tastes, but out of a popular realization of the public requirements.
"It is of vital importance to the young lawyer starting out on his career that he should have a just understanding of his own aptitudes and capabilities. Within the profession itself there are many different pathways requiring different qualities and talents. It is right to aim high, but it is wise also to aim at an object within reach. The arrow of Acestes was fired at the stars, but though it left a gleaming train of light it fell far short of the mark. We row in the same boat, you know,' said a pretentious comic writer in a patronizing way to Douglas Jerrold. Yes, in the same boat,' answered the wit, but not with the same skulls.' The progress of your intellectual boat depends much an the sort of skull you bring to its practical
"It is this essence and inspiration of the law which has made its followers the champions of freedom and the leaders of human progress. The world has relied on its devotees to fight the battles of right and liberty. Legislation and jurisprudence have advanced like all other things. They had their dark ages in common with the civilization of which they are the index. They are to-day far beyond where they were a century ago. But in the forward strides of the race, in the amelioration of human conditions, in the uplifting of government and society, the lawyer has led the advance. Under the lurid glare of the French revolution Edmund Burke wrote that the profes-operation. sion of the law teaches its members to augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze.'
"It has had its false lights and its beacon lights. If it had the perfidy of Strafford, it had the unsullied honor and heroic struggle of Pym and Eliot and Hampden. If it had the cruel despotism of Jeffreys, it had the enlightened wisdom of Eldon and Mansfield. If it had the treason of Aaron Burr, it had the colossal constructive work of John Marshall. Whatever its stains and its blemishes, they have been immeasurably outweighed and outshone by the glories of its service for the redemption and advancement of mankind.
"The legal profession has always been and always will be closely associated with the political activity and the public life of the country. There is a natural tie between them. The public service is a distinct aim in England, where hereditary position and an official class furnish the leisure and the opportunity. The conditions are different here. The young lawyer needs to be adjured to devote himself strictly to his profession rather than encouraged to yield to the allurements of public place. There are, indeed, obligations of citizenship which all patriots should accept, and when a call of plain duty comes it is to be obeyed. But the young man, whether in professional or business life, cannot be advised to engage in the quest of political station. If it comes in the natural order, let it come. His knowledge, train ing and qualifications fit him for the public service. It is often rather flippantly said there are too many lawyers in congress or in administrative place. It is quite true that a liberal infusion of business leaders who are thoroughly men of affairs has its advantages. Their practical knowledge guides and tempers theoretical conceptions. But it is none
You want a paddle wheel for an
Indian canoe or a feather oar for a Hereschoff cutter. One man shines in counsel and another in the forum. One is fitted wholly for legal exposition and another for broader forensic effort. Thomas Erskine was the greatest of advocates at the bar, with wonderful power of eloquence and mastery of the law, but he had no parliamentary faculty, and when he entered the house of commons, and Pitt, after listening for a time to his maiden effort, tore up his notes in contempt, the faltering orator sank under the sting of failure and mortification.
"It is an auspicious time to enter on your profession. Devoted as you may be to its exacting demands, you cannot fail to take a lively interest in the current discussions of the day. The alert and intelligent lawyer, with an open and eager mind, must naturally be attracted by the new problems of national policy and governmental authority which now present themselves for solution. It is a time to fire the mind and quicken the pulse. It is a time for stimulating and exhilarating thought. We are getting away from old ruts and beaten tracks. We are exploring new fields of constitutional power and national movement. The mighty events of the past two years are carrying us forward into the realm of world activity, and we are confronted with new and momentous questions which address themselves to the best study and the deepest reflection of the lawyer, the patriot and the statesman. Whatever may be your view, whatever differences of opinion may be aroused, these problems of national destiny and world magnitude are calculated to uplift the whole level of public thought and discussion, and I have confidence enough in the virtue, intelligence and purpose of the American people to believe that, through all trials and triumphs, they will be finally
settled in full harmony with the honor, the dignity ill, John H. Cummings, Theodore Hutting Dimon, and the glory of our beloved republic.
"The decisive leadership and molding determination of these questions subject to the final approval of the people, fall within the executive and legislative authority. But the determination of the fundamental questions of national power and constitutional right must pass under judicial review for conclusive adjudication. Whatever may be cur differences in the preliminary contests, whatever may be our party struggles, it is the exemplary habit of the American people to accept the judgment of the courts. The independence and integrity of the judiciary constitute the sheetanchor of our safety amid the dangers of public passion, the excesses of party zeal, and the selfishness of sordid greed; and the popular respect for the arbitrament of our judicial tribunals is the bulwark of our free institutions. Public opinion does not always accept the infallibility of judicial proceedings. We are a critical and penetrating people. But there is a universal recognition of the truth that there must be tribunals of last resort, to whose judgment all must bow, and beyond and above this, the number is few of those who are degraded enough to challenge the rectitude and the probity of our courts.
"The standard of the bench should be the standard of the bar. So far as your influence extends, it is placed in your keeping. It is for you to maintain the best traditions and the highest honor of the great company whose names have illuminated the annals of the State and the nation. You go forth upon your career with the training of a grand institution, with the precepts of learned and faithful instructors, with the example and the inspiration of illustrious leaders of the profession,
whose wise guidance and noble achievements in council and in court have emphasized the possibilities open before you; and it is for you to prove yourselves worthy of the glorious record which is now confidently committed to your hands."
Dean Fiero then presented the graduates to President Raymond, who, before handing them their diplomas, made an address which contained excellent advice for the young lawyers. He told them that fidelity to their clients was essential if they were to hope for success. It had been said that character was not of muh importance to a lawyer, and was not essential for his success. This, he declared, was untrue, for integrity was worth more to any professional man than any other one thing in the world. The best asset a lawyer or any other person can possibly have is reputation. Prof. Raymond advised the graduates to stand for honesty and fair dealing, and if they did there was no doubt of their success.
The following students, having attended two scholastic years, received from Dr. Raymond the degree of LL. B.: Peter Ammon, Carl F. Church
J. Francis Hanlon, Walter R. Herrick, Henry S. Kahn, Fred M. La Duke, Silas B. Lyman, William Joseph Maier, Charles D. Phillips, John H. Phillips, John H. Rea, Patrick J. Rooney, Edward C. Sturges, Frances A. Van Santford, William Leversee Visscher, William R. Whitfield, Jr., and the following students who attended one scholastic year, preceded by two years of legal study: Benjamin Baker, Martin E. Burke, Austin J. Calhoun, Arthur J. Case, M. Lavern Clapp, William V. Cook, William H. Davis, Burton E. Emory, J. Ralph Hilton, William F. Meigher, Charles B. O'Connell, George W. Plusch, S. G. Hatheway Turner, John V. Whitbeck, Jr.
Gen. Parker then announced the prize awards, as follows: Edward Thompson Company prize A set of American and English Encyclopedia of Law, to the member of the graduating class who shall write the best thesis on some legal subject assigned by the dean of the faculty. Awarded to J. Ralph Hilton. Honorable mention is made of Miss Frances A. Van Santford.
Amasa J. Parker prize - The family of the late Amasa J. Parker, LL. D., have founded an annual prize of the value of $50 in memory of their father, who was one of the founders, and for many years an instructor and trustee of the school, to be given to the member of the graduating class who shall reach the highest standing in deportment and in the performance of his general duties. Awarded to William R. Whitfield. For the student standing next in deportment and in the performance of his general duties the faculty prize of $25 is offered. Awarded to Charles D. Phillips.
The "Dean's prize"-J. Newton Fiero, dean and "Special Proceedings," has established a prize of the faculty, and author of "Special Actions consisting of a set of the above works, to be awarded to the member of the graduating class who shall excel in class work and examination in "Procedure" during the course. Awarded to Henry R. De Witt.
The "Bender prize". Matthew Bender, law book publisher, of Albany, offers to the graduate who shall reach the highest mark in the examination on the subject of corporations a set of "The American Electrical Cases." Awarded to S. G. Hatheway Turner.
A reception in Postmaster-General Smith's honor was held after the commencement exercises
at the residence of Gen. Parker.