[266 U.S. 209, 210] Messrs. Walter F. Van Dame, of Enumclaw, Wash., J. Blanc Monroe, of New Orleans, La., and Albert C. Hindman, of Boise, Idaho, for plaintiff in error.
Mr. Wm. C. Todd, of Cristobal, Canal Zone, for defendant in error.
Mr Justice SUTHERLAND delivered the opinion of the Court.
This is an action brought in the District Court for the Canal Zone by James Rock to recover damages for the death of his wife, alleged to have resulted in 1918 from the negligence of the railroad company, while she was being [266 U.S. 209, 211] transported as a passenger. Upon the verdict of a jury, final judgment was rendered for plaintiff, which was affirmed by the Circuit Court of Appeals. 272 F. 649. The sole question presented for our determination is whether, under the law of the Canal Zone then in force, there was a right of action.
It is settled that at common law no private cause of action arises from the death of a human being. Insurance Co. v. Brame, 95 U.S. 754 , 756. The right of action, both in this country and in England, depends wholly upon statutory authority. Dennick v. Railroad Co., 103 U.S. 11 , 21; Seward v. The Vera Cruz, L. R. 10 App. Cas. 59, 70. This court, also, after elaborate consideration, held that no such action could be maintained in the courts of the United States under the general maritime law. The Harrisburg, 119 U.S. 199 7 S. Ct. 140. And the general rule of the Roman civil law seems to have been the same as that of the common law. Such was the conclusion of the Supreme Court of Louisiana in a case which was discussed with great fullness and learning at the bar and well considered by that court upon its original presentation and upon rehearing. Hubgh v. N. O. & C. R. Co., 6 La. Ann. 495, 509-511.
But it is contended that the action is maintainable under article 2341 of the Civil Code of Panama, which became operative in the Canal Zone by executive order of May 9, 1904. That article reads:
The applicable passage of the Executive Order is:
The provision under consideration apparently was adopted from the Code of Chile by the several states of Colombia, the adoption by Panama being in 1860. The contention is that the provision in the Chilean Code, in substance, was taken from the Code Napoleon, and is to be found, also, in the Civil Code of Spain; that both the French and the Spanish courts had interpreted it as justifying an action such as we are here reviewing; and the familiar rule is invoked that a provision adopted by one country from the laws of another country is presumed to carry with it the meaning which it had acquired by the known and settled construction of the latter. Undoubtedly the decisions of the French courts were to the effect stated. La Bourgogne, 210 U.S. 95, 138 , 28 S. Ct. 664. It must be borne in mind, however, that the South American countries named were predominantly Spanish in race and language, and therefore it may scarcely by doubted that the statute was taken directly from the Spanish and not the French Code. It follows that the presumption that the French construction was adopted with the adoption of the statute cannot be indulged. Texas & Pacific R. Co. v. Humble, 181 U.S. 57, 65 , 21 S. Ct. 526. Moreover, there is nothing in any of the circumstances called to our attention to support an inference that the statute was adopted with knowledge of the French construction. See Hunter v. Truckee Lodge, 14 Nev. 24, 38-40. The earliest decision of the Spanish courts of which we are informed was in 1894. Borrero v. Compania Anonyma de la Luz Elec trica, [266 U.S. 209, 213] 1 Porto Rico Fed. 144, 147, long after the adoption of the statute by either Chile, Colombia, or Panama. The presumption in respect of the adoption of the Spanish construction, therefore, has no foundation upon which to rest and must, likewise, be rejected. Stutsman County v. Wallace, 142 U.S. 293, 312 , 12 S. Ct. 227.2 We are not advised that the courts of Chile and construed the provision prior to its adoption by Panama; and it is asserted, and not denied, that prior to its adoption by the executive order and congressional act, there had been no decision on the question by either the courts of Colombia or Panama.
It remains, then, only to inquire whether the asserted right of action exists in virtue of the language of the statute independently construed. Upon that question decisions of the various Spanish-speaking countries are of persuasive force only; and even that is overcome or greatly diminished when it is shown that the cognate statute in Porto Rico, and, for aught that appears to the contrary, in the other Spanish-speaking countries, is supported by procedural or other provisions lending aid to its construction as a death statute. In the Borrero Case (page 146) it is said:
The Supreme Court of Louisiana in the Hubgh Case, supra, considering the similar provision in the Louisiana Code, held that it did not include a civil action for death. This conclusion was reached after submitting the language to the test of civil law as well as common law principles.
The executive order continued in force in the Canal Zone the laws of the land 'with which the inhabitants are familiar,' and this, in effect, was ratified by the act of Congress of 1912. Immediately following, the native population disappeared and the inhabitants of the Canal Zone since, largely American, have been only employees of the Canal and of those doing business in the Zone, who it is to be presumed were familiar with the rule of the common law rather than the construction said to have been put upon the statute by the various Spanishspeaking countries. As early as 1910, the Supreme Court of the Canal Zone declared that the courts of the Zone were 'in duty bound to follow the rules of statutory construction of the courts of common law and ascertain by them the meaning and spirit of the codes.' Kung Ching Chong v. Wing Chong, 2 Canal Zone Supreme Court, 25, 30. In the later case of Fitzpatrick v. Panama Railroad Co., Id., 111, decided in 1913, the same court said (page 121):
Under all the circumstances, we conclude that the reach of the statute is to be determined by the application of commonlaw principles ( Panama R. Co. v. Bosse, 249 U.S. 41, 45 , 39 S. Ct. 211), and, applying these principles, it is clear that the general language of article 2341 does not include the [266 U.S. 209, 215] right of action here asserted. It would not be difficult to find generalizations of the common law quite as comprehensive in terms as the provision now under review, as, for example, 'There is no wrong without a remedy.' 3 But nevertheless, under the principles of the common law, it has required specific statutes to fix civil liability for death by wrongful act; and it is this requirement, rather than the construction put upon the statute in civil law countries, that the inhabitants of the Canal Zone are presumed to be familiar with, and which affords the rule by which the meaning and scope of the statute in question are to be determined.
Mr. Justice HOLMES (dissenting).
There is no dispute that the language of the Civil Code of Panama, 2341, which has been quoted, is broad enough on its face to give an action for negligently causing the death of the plaintiff's wife. Taken literally it gives such an action in terms. The article of the Code Napoleon from which it is said to have been copied is construed by the French Courts in accord with its literal meaning. La Bourgogne, 210 U.S. 95, 138 , 139 S., 28 S. Ct. 664. It would seem natural and proper to accept the interpretation given to the article at its source, and by the more authoritative jurists who have had occasion to deal with it, irrespective of whether that local interpretation was before or after its adoption by Spanish States, so long as nothing seriously to the contrary is shown. The only thing that I know of to the contrary is the tradition of the later common law. The common law view of the responsibility of a master for his servant was allowed to help in the interpretation of an ambiguous statute in [266 U.S. 209, 216] Panama R. Co. v. Bosse, 249 U.S. 41, 45 , 39 S. Ct. 211, for reasons there stated. But those reasons have far less application here, even if we refer to the common law apart from statute, and in any case are not enough to override the plain meaning of statutory words.
The common law as to master and servant, whatever may be thought of it, embodied a policy that has not disappeared from life But it seems to me that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore may exclude a reference to the common law for the purpose of limiting their scope. Johnson v. United States, 163 F. 30, 32, 89 C. C. A. 508, 18 L. R. A. (N. S.) 1194. Without going into the reasons for the notion that an action (other than an appeal) does not lie for causing the death of a human being, it is enough to say that they have disappeared. The policy that forbade such an action, if it was more profound than the absence of a remedy when a man's body was hanged and his goods confiscated for the felony, has been shown not to be the policy of present law by statutes of the United States and of most if not all of the states. In such circumstances it seems to me that we should not be astute to deprive the words of the Panama Code of their natural effect.
The decision in the Hubgh Case, 6 La. Ann. 495, stands on nothing better than the classic tradition that the life of a free human being, (it was otherwise with regard to slaves,) did not admit of valuation, which no longer is true sentimentally, as is shown by the statutes, and which economically is false.
I think that the judgment should be affirmed.
The CHIEF JUSTICE, Mr. Justice McKENNA, and Mr. Justice BRANDEIS concur in this opinion.
[ Footnote 1 ] 'That all laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide.'
[ Footnote 2 ] We have the authority of the Hubgh Case for the statement that the earlier Spanish law was to the contrary effect. 6 La. Ann. 510, 511.
[ Footnote 3 ] The maxim was applied in Like v. McKinstry, 41 Barb. (N. Y.) 186, 188, to support a right of action for slander of title to personal property.