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with a moral one; the father being the support of the family, or the son the support of his mother. But if the death was that of an infant, or of an old man whose feebleness and infirmity rendered him a burden instead of a support, an action could still be maintained. The author says: “If such action could not be maintained, follow out the reasoning to its consequences. It goes to the length of asserting that, instead of doing the son or the mother an injury by the death, the wrong-doer has rendered them a service. Such reasoning would be to mistake the morale of the law; to put money against the affections of the heart. He who brings an action under such circumstances, according to the beautiful expression of the Roman law, causam agit doloris. It is sometimes the duty of a son or of a widow in such a case to join a private action with the public prosecution, either for the purpose of giving aid to the public prosecutor, or to stimulate his inactivity and want of zeal. The widow, the son, the mother, has a right to compensation for the wrong suffered in the social relation. It is said that money cannot pay for grief; but the amount recovered is not to be regarded so much as a making whole of the party injured, as it is a filling out of the satisfaction demanded from the culpable person. The application of the punishment suffices for the vindication of the public; but one hurt in his feelings, in his reputation, has a right to a private compensation. That compensation is given in money, for want of power to give a better one.”
Lord Bacon says it is a common byword that life, liberty, and dower are the favorites of the English law. The affections of the heart are no less the favorites of the French law. A husband can maintain an action not only against the seducer of his wife, but also against one found guilty of having sustained with her scandalous relations, even though no adultery be proved. He can also support an action against one who was once his wife in case of a divorce pronounced against her for such a cause.
A moral damage sufficient to support an action sometimes exists where the wrong is done immediately to a third person. Sometimes the wrong is considered as done to one when in appearance it is directed against another. In such cases the liability depends upon the intention of the wrong-doer. Sometimes the close connection between two persons renders the injury common to both. The father can maintain an action for his own benefit for an
injury done to a son who is a minor and not emancipated. Sometimes, also, — because the family reputation is the common property of the family, and that common property is specially intrusted by morals and by law to the watchfulness and guardianship of the father, — he can sue for an injury done to his children who are under age. A husband can always maintain an action for an injury done the wife, provided it be not an injury to her separate property.
The rule as to the directness and the remoteness of damage is the same in the French as in the English law. “ The damage of which the party complains must flow directly from the wrong for which the action is brought. It is not sufficient that the one should be joined to the other by vague and ill-defined connections. A damage which is connected with a culpable act remotely, is not its necessary consequence, and may have other causes. Now, the author of a wrong, notwithstanding the slight favor he merits, should not be held to make good a damage which cannot be proved to actually flow from his act." The author supposes two cases as illustrations of the rule. Can one who has been acquitted of a crime maintain an action against the true criminal for the damage he has suffered from his having been wrongfully prosecuted ? He cannot; because the proceedings against him were the act of the public prosecutor, and not of the guilty person. It may be said that by making confession the guilty person could have saved the innocent; but by keeping silence he violated at most a moral duty, he did not directly infringe the right of another.
An incendiary in burning a building has occasioned injury to a neighboring house. The fire-engines have been placed there; or the wall has been pulled down to stop the spread of the flames. The proprietor in such case cannot maintain an action, because the damage he has suffered is the consequence of means employed by others for their own preservation, rather than a result of the act of the delinquent. But if the damaged house was united to the building which was burned so as necessarily to suffer with it, such damage would be considered as resulting directly from the wrongful act. “ The attendant circumstances in a case like this are of great importance.”
Yet, though the rule is the same in each system of law, some of the consequences deduced from it are very different. For it is held that one who exercises a lucrative profession, which is placed under conditions and regulated by law, is actually and directly injured by the illegal exercise of the profession by unqualified persons. The sale of medicines is by law permitted exclusively to apothecaries who have received a diploma. Such apothecaries have a legal right and a direct actual interest in preventing the sale of remedies by unqualified persons. Although such prohibitions are established in the interest of the public more than for the benefit of the apothecaries, still the public does not exclude the private interest. The privilege granted the apothecaries is also a compensation for the long preparatory studies they have undergone, and for the expense they have been at in obtaining their education. The damage results directly from the sale of the secret remedies. All competition in such case is harmful. The damage done is actual. It may be difficult to estimate, but it is for the injured party to make the proof and furnish the elements from which it is to be computed. So physicians have a right of action against quacks; licensed brokers against the unlicensed ; qualified advocates against the unqualified; and auctioneers against attorneys and process-servers, who mix themselves up with sales of household furniture, when the first alone have the right to make them. To the maintenance of such actions the difficulty of estimating the damage has been objected. But the Court of Cassation has answered that the difficulty of ascertaining the damage is not a reason for holding that an action cannot be maintained. Where it cannot be said with certainty that the sale of a quack medicine, for instance, has injured any particular apothecary (and the number of apothecaries in Paris is very considerable), the action can be brought by the corporation of apothecaries in the mass, who necessarily must comprise all who have been injured. The question how the sum sought to be recovered is to be ultimately divided between the demandants is a question which cannot influence the court in the judgment to be pronounced against the wrong-doer.
The injury to the affections is considered a direct damage. The wife and children of a man who has been assassinated, when they sue the murderer, found their action upon a direct damage they have suffered. It is not as heirs they sue. The action is personal to them, because they have been wounded in their affections and in their proper personal interests.
Can heirs maintain an action for a libel upon the memory of their ancestor ? This question is a complex one. If the defamation is addressed in reality against the person who brings the action, although it seem to be directed against the deceased, the action can be maintained. It is not necessary that the person libelled should be designated by name. One cannot do in a roundabout way what it is illegal' to do directly. There is no doubt but that if the abuse spoken of one's father, grandfather, or spouse, who is dead, is said as reflecting upon the living relative, an action will lie. This has been decided by the Court Royal of Paris, upon an appeal from a judgment rendered upon the complaint of the heirs of the Duchesse de Touzel against the editor of the Censeur. “Taking into account that the action of libel can be maintained by those who are defamed, directly or indirectly, by printing and publishing, and that defamatory matter spoken of the memory of a person dead, gives to his representatives a right to demand damages when what is said is of a nature to blemish their honor and the consideration in which they are beld; and when it has been published with that intention; that the writing forming the subject of this action has been published for the purpose of defaming the members of the family of the Duchesse ; that it attributes to her a culpable acquisition of property, and represents her heirs as detaining illegally a fortune acquired by shameful and criminal means, -- the judgment is affirmed.” Here the abuse was directed openly to the heirs. But if the defamation attacks the memory of the deceased alone, without any intention on the part of the writer to attack the heirs personally, will an action lie? “Is it true,” says M. Charsan, “ that the law does not protect the cold ashes of the tomb ? Can the name which we leave after us, and which we bequeath to our children, our relations, and our friends, be outraged with impunity? Are there not there interests to guarantee, hopes to protect, a community of remembrance, a true property of the family which must be defended against ill-natured attacks?” Our author adds: “In principle it is difficult to deny to a son the right to defend the insulted memory of his father. There are legitimate affections, which cannot be assailed with impunity. Why should not these moral wounds be compensated, as are those of the body?”
The sum of the matter is this, that while the English law punishes criminally that defamation of the dead which tends to outrage the feelings of the living, but gives no right of private action to the surviving relatives, the French law does not punish such defamation criminally, but does give a right of private action to the surviving relatives. One who writes about the public life of a deceased public man is liable to his representatives in damages if what he states for matter of fact is stated inexactly, although he fell into error without wrong intention. As to statements of fact concerning the private life of one deceased, such statements, even if true, are actionable, if they tend to the prejudice of the living.
The perplexing question, what damages are to be considered as the immediate and direct result of the wrong, and what • as too remote to allow a recovery, is well illustrated. The author reasons as follows: in the matter of torts, the damages should be the representation of the loss suffered and of the gain prevented, lucrum cessans et damnum emergens. This is a general principle which presents difficulties in its application. The damages ought to comprehend, in regard to the loss suffered and the gain prevented, all that is an immediate and direct consequence of the tort, and nothing beyond. They should comprise all the loss of which the tort has been the immediate cause, but not that which lies at a distance and can have other causes, of which the tort is perhaps nothing but the occasion, and not the efficient cause. Dumoulin formulates this rule in an hypothesis where a lessee has maliciously set fire to the house. It is clear that the incendiary, lessee or not, is bound to repair the damage he has caused. Beside the action which originates ex delicto, if the incendiary is the lessee of the house he can be sued upon his contract. These two actions have the same result. They are equally efficacious. The responsibility in the one case has the same extent as in the other. Now Dumoulin says: “ Et adhuc in doloso intelligitur venire omne detrimentum tunc et proximè secutum, non autem damnum posteà succedens ex novo casu etiam occasione dictoe combustionis, sinè quâ non contigisset, quia istud est damnum remotum quod non est in consideratione.”
Suppose the fire having been set to my buildings, my oxen and horses have perished. The incendiary ought to indemnify me for all it will cost me to rebuild and to procure again the same number of oxen and horses. If the market price of such animals has