The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1860-01-26
THE PACIFIC
Commercial Advertiser.
SUPREME COURT.
kake ~. {. y. Horton.

N'N ''A-F u NJ hTiA = AAt IL u ~ Iri"Ll-
ant She brought the action 70 recover damages f-
the les- thus sustained by her. The case CONSUMED
in It's i-ial the whole Of last week. AMI for that time
quite absorbed public attention. The limits Il 4
weekly will not permit Us 10 publish so full a report
rs we would wish, and We omit the greater part u
our reporters notes.
The most important a. the motions preliminary q,
the trial, was that 90 dismiss the cause fr want Of
legal groInd Of actior. which Wa debated during all
81 MoLday. The ruling - the Court, delivered by
Justice Robertson, on Tuesday morning, was a.
follows:
We are Of the opinion that much OF the law read b.
the learned counsel for defendant, ~ well a. a grea
part OF their argument, Is inapplicable to the question
at issue.
They treat the case as If this was an action Of tres
pass brought by the plaintiff to recover damages for Al
assault and battery, committed on her deceased nus
band, Charlie Pi0le; whereas, rs We understand tn
matter, II Is an entirely different thing, being an actor
on the case. 10 recover for consequential damage result
ing 70 the phintif by reason OF the Heath Of her lat,
husband, which she alleges To have been caused by The
wrongful act Of the defendant. Horton.
The simple question Is, can an action on the ease
be maintained in the Courts Of this kingdom. upon the
cause Of action set frth in the Plaintiffs petition and
Tso. can such action be brought by the widow
whether this action can be maintained upon the
grounds relied on ia the present case, must, we think
depend upon the municipal laws Of the country where
the action IS brought, or Of the country where the
wrongful act IS Committed In the present Csc the ac-
ton - brought ~ the courts of the same country where
the act "Eish is said 10 have Oest=iOnei the death Of
p~laintif's husband Is alleged 10 have been done.
By the Common Law Of England, the action would
not he In the case Of Baker Is. Bolton ct GL, l Camp
bells Rep, page f9f, which was an action against the
fetendants as prOprietOrs Of = stage coach, on the top Of
which the plaintiff aud his late wife we're travelling from
Portsmouth 20 London, when Il was O:eTturnei, where
b the plaintiff himself was much bruised, and hts wife
was so severely hurt that she died about a month after:
L9rd EReH6oroHgh, G. J., hell that the jury could only
take into consideration the bruises which the plaintiff
had himself sustained, and the loss Of hs wife, sycic'y
and the distress Of mind h- hal suffered on her account,
from the time Of the accident until the moment of her
dlssOiution- For that, IN a civil court the deIDt ~ a
human beng could not BE- complained Of - an iDjury;
and the damages as to the plaintiffs wife must stop
with the period of her existence.
IL IS argued By counsel for the defendant, that the
Common Law Of England Is In force ia this kingdom,
and that therefore the action cannot lie maintainel in
Ilis Court In our opinion, this argument Is not sound.
We do not regard the Common Law of England ~ be-
ing IN force here 90 HoDiiHe and a. a whole Its pTinci-
pies and provisions are in force so far as they have been
expressly, or by necessary implication, incorporated into
our laws by enactment Of the Legislatures; or have been
adopted by the rulings of the Courts Of Record; or have
become a part Of the common Law Of this kingdom by
UNIVERSAL usage; but no fITther- The analogy sought
TO be set up between the Hawaiian Islands and the
British Colonies IN North America (nOw a part of the
United States, with reference to the Common Law Of
England, Is not IL cur opinion, well sustained. We
think the circumstances of the two countries are widely
different.
Whether or not the present action can be maintained
IN this Court, depends upon the construction To- Je
given to certain provisions Of the Hawaiian Statutes.
The provision contained in the IIIGth Section OF the
Civil Code touching the institution Of suits to recover
damages for injuries direct or consequential is very gen.
eral IN lis terms, as IndCed such a provision must be,
it being impossible for the Legislature to define and
enumera;e all the various causes for which an action of
trespass, or an action on the case. will lie. Such causes
are illImitable in their variety. And as has been re-
peatedly remark IL, 1t is by no means 4 conclusive OBJ
JectiOn to IN action ON the case to say that an action
never was maintained for the same cause before. When
an action - brought under the general prOvisI II refer
red 10, the question whether or not that particular ac-
ton Will lie Is n matter for judicial determination, not
certainly according to the mere within or fancy of the
CouTt or Judge, but in accordance with legal principles.
Ii - provided In the nth Section of the Civil C.de,
which forms 4 part of the Chapter on the Construction
Of Laws. that in all civil matters where there is no ex-
press Law, the Judges are bound to proceed and decide
according to equity, applying necessary remedies to
evils that are not specifically contemplated by law, and
conserving the cause Of morals and good conscience.
And, 10 decide equitably, an appeal is to be made to
natural law and reason, or 10 received usage, and
resort may also be had to the laws and usages of other
countries. We think reason and natural justice are
clearly in favor of permitting an action to be maintain
cd, upon the grounds relied upon ia this case, and upon
n resort, fO- light, t. the laws of those countries, to
whose authority and opinions We yield the highest ven
Grafton, We find that the old harsh rule, which had It's
origin In feuIal times, has been supe scdtd by liberal
statutory pr" ions, more in accordance with justice
and with the s>ntiments and circumstances Of an en-
lightened age As we are not fettered by the English
Common Law rule on the subject, no legislative enact
rnent Il required TO remove that obstacle to the MAIN
tenance Of an aeti, N like tire present in a Hawaiian
Court, AMI We think il ought To be permitted, rs being
consonant with natural Law and reason, rs well as with
the laws Of civilized Countries
In the eaSe Of Carey aud Wife - berkshire K. r.
Co, ] Cushin='s Rep. page $780, NetcIlf, j., intimated
IN opinion that by the Civil Law, and by the Law Of
France and Scotland, whose Jurisprudence is mainly
basel mon the Civil Law, actions Ike the present
coulIlbe maintained. We regret that We have not had
time - verify, by references 20 the books, the opinion
OF 50 respectable an authority, becau-e this wOull Of
itself afTori q distinct and sufficient foundation for our
decision : the several Courts OF Record having the
power. under the S23I- Section Of the Civil Code,
which i not n new provision IN our Statutes. but one
which has been repeatedly acted upon by this Court,
to cite anil adopt ut their discretion, the reasOniugs
AMI r-ineipIes of the Common Law. or Of the Civil
Law. so far a. tine same may appear To the Court to be
founIel in JUSTICE AMI not IN conflict with the laws
anil customs Of this Kingdom II, rs : intInIteI III
Law vouFI permit the institution Of such an action as
the present, we have no hesitation in preierTiug the
doctrine Of the Civil Law 10 that of the English Com
mon Law upon this point for We conceive the former
20 be nre-eminentIy - founded in justice"
The principle which we now recognize will become,
by judicial adoption, = yaluIbic part OF the Common
Law Of this kingdom.
With regard to the objection that this action must
be brought by the executor or administrator Of the
decelent. we think such an objection applies merely To-
the firm OF enforcing the remedy. and not to the merits OF
the claim, OF the principle upon which it stands We
have some doubt whether, under our statute of pTac-
,ice a. il reads at present, an administrator could
m1intain the action, as such The provision of the
English statute referred to @ and 10 Wet requiring
the suit To be brought by the executor or administrator
Is evidently intended for convenience and TO prevent a
InuIriplicity of actions. But the damages recovered in
such actions are not general assets in the hands OF the
administrator, being for the IadirtdHat benefit Of the
widow. or other party entitled thereto ; and 1t does not
appear by any means indispensable that the suit should
be brought by the administrator We think the suit
in this casc Is well brought by the widow.
Motion denied
The jury as finally accepted, after numerous chal-
Ienges tor cause, consisted Of J. l~Isriisty, George G.
Clarke, Sherman Peek, Ira Richardson, J. Irwin, r
GiIIiIand, Puniwai. ID. Pai, Keawehano, Nahalelau-
hala, kekalohe and humslae, vino were duly sworn