tablished as and were thereby made an existing corporation under the name of the St. Paul and Minneapolis Mortgage Loan and Trust Company." This is a narrative of long past occurrences, and the expression of an opinion as to their legal effect. If admissible for any purposes in the courts of Minnesota, as to which we have no occasion to inquire, it is in those of Connecticut mere hearsay, and should have been excluded. No statute of Minnesota could give it the force of evidence in another jurisdiction.

No injury, however, could have been done to the defendant by its admission. It is true that it may have influenced the jury to find that the company was legally incorporated, and that their verdict may have been based on that ground. They were instructed by the court that this certificate was competent evidence tending to show that the executive officers of the state authorized the company to proceed with corporate business upon the assumption that it was duly organized and entitled to act, and so to show either its legal or de facto existence and its change of name. But a certificate from the secretary of state, dated in 1893, had also been introduced, without objection, which had been given shortly after the change of name, by which those originally associating as the St. Paul and Minneapolis Mortgage Loan and Trust Company had become the Northern Trust Company. This certificate was in the form prescribed by the statute, and was 394 presumably offered to show that the final act contemplated by the legislature had been performed, and the incorporators thereby "made" an existing corporation by the name of the Northern Trust Company. As such it was admissible in our courts to show, not that the statements which it contained were true, but the fact that they were thus officially made. The defendant had also laid in a certified copy of the original articles of association filed in 1889. The jury had been informed as to what were the laws of Minnesota under which incorporation had been sought. Under those laws, the articles of association were, on their face, sufficient to support a corporate organization, provided a capital stock of $500,000 was subscribed, and the proper deposit made with the state auditor: Minn. Stats., Kelly's ed. of 1891, sec. 2696; Revision of 1894, secs. 2843, 2844. Whether $500,000 had thus been subscribed and the deposit duly made, were questions which were properly submitted. It was not claimed before the superior court, nor has it been claimed here, that the incorporation of the company was defective in any other respect than

that relating to the amount of its capital. That it was a de facto corporation had been established by the pleadings. The complaint alleged due incorporation, and the answer admitted that "the articles of association of said corporation specified that its capital stock should be $800,000, divided into 800 shares of $100 each," and that "the defendant became the owner and holder of ten shares of the capital stock of said corporation," and "purchased said stock from said corporation in the open market." That the corporation was not a de jure one, unless its actual capital was at least $500,000, the jury had been distinctly instructed.

Under these circumstances, and taking the charge as a whole, the verdict cannot have been affected by the introduction of the certificate given in 1897.

The motion to set aside the verdict as against the evidence was properly denied. No question was presented by it which was not otherwise raised, except that in respect to the effect of the defendant's testimony that he was assured by the brokers who, as agents for the company, induced him to take 395 his shares, that there was nothing more to be paid on them. Even if this could have been a defense to a call by the company, it could, after he had allowed eight years to pass in silence, be none to one made upon its insolvency, by order of court, for the benefit of creditors.

Other assignments of error are made, but they have not been argued, and are wholly without merit.

The case against the administrator of the estate of Ebenezer Gilbert differs in no respect from that against Andrew H. Smith, and its disposition is governed by the same principles. That against Henry Rogers presents a single point which is new. His certificate of stock was dated in 1889, and stated that he owned "ten shares of the capital stock of the St. Paul and Minneapolis Mortgage Loan and Trust Company, on each of which had been paid the sum of fifty dollars." The certificate was engraved with a heavy ornamental border, on one side of which were introduced the words, "Capital stock, $800,000"; and on the other the words, "8,000 shares, $100 each."

These marginal statements were as much a part of the certificate as if they had been contained in the body of it. The paper, therefore, showed upon its face that the shares were not fully paid up.

There is no error in either judgment.

In this opinion the other judges concurred.

mono

Suits by Foreign Receivers are discussed in the graphic note to Alley v. Caspari, 6 Am. St. Rep. 185-189. In Parker v. Stoughton Mill Co., 91 Wis. 174, 51 Am. St. Rep. 881, 64 N. W. 751, it is held that a receiver of a foreign mutual insurance company may sue a member for an assessment upon a premium note: See, further, Wilson v. Keels, 54 S. C. 545, 71 Am. St. Rep. 816, 32 S. E. 702; Wyman v. Eaton, 107 Iowa, 214, 70 Am. St. Rep. 193, 77 N. W. 865; Murtey v. Allen, 71 Vt. 377, 76 Am. St. Rep. 779, 45 Atl. 752. A foreign receiver may maintain an action to compel the payment of unpaid subscriptions if the corporation itself could have maintained it had the stockholder been a citizen of the state in which it was domiciled: See the monographic note to Thompson v. Reno Sav. Bank, 3 Am. St. Rep. 834.

BROUGHEL ▾. SOUTHERN NEW ENGLAND TELEPHONE COMPANY.

[73 Conn. 614, 48 Atl. 751.]

NEGLIGENCE-DEATH BY WRONGFUL ACT-MEASURE OF DAMAGES-EVIDENCE.-Under a statute giving the right to recover for a death caused by wrongful act, the mere fact that the death was instantaneous, and that the loss of life was without pain or suffering, does not of itself prevent the recovery of substantial damages by the administrator or executor of the deceased. The measure of damages in such cases is the loss of earning capacity resulting to the decedent himself, and, as a consequence, to his estate. As relevant upon that question, evidence of his age and the general state of his health at the time of his death is admissible.

H. Stoddard, F. L. Hungerford, and J. T. Moran, for the appellant.

E. D. Robbins, for the appellee.

616 TORRANCE, J. The important questions upon this appeal are these: 1. Under our statutes relating to death by wrongful act, can there be a recovery of substantial damages for mere loss of life alone? 2. If so, what is the measure of damages in such case? These questions will be considered in the order stated.

When this case was before this court in another aspect of it, one of the points decided was that the mere fact that death was instantaneous, and without pain or suffering of any kind,

did not of itself prevent the recovery of substantial damages: Broughel v. Southern New Eng. Telephone Co., 72 Conn. 617, 45 Atl. 435. In effect, that case, we think, decides the first question against the contention of the defendant. It was found by the trial court, in that case, that death was the sole and only consequence of the negligent act, and yet it was decided that the plaintiff was entitled to recover substantial damages for that consequence. That decision can only be supported on the theory that under our statutes, of the kind here in question, damages may be recovered for the mere loss and deprivation of life alone; for in that case it was found that no other consequence save mere loss of life followed from the negligent act.

A negligent act causing death is an invasion of the right to life, the first and highest of all rights, on which all others 617 are based. That act may be attended by divers consequences and effects. It may be followed, as it is found it was in the present case, by death alone, instantly and painlessly, or it may be followed by bodily and mental suffering and agony as well as by death. We think our statutes make the wrongdoer in such cases liable in damages to the executor or administrator of the decedent for any and all such consequences, and among them for the mere loss and deprivation of life. For such consequences he is to pay "just damages," not exceeding a prescribed amount. This view of this matter was the one taken in Murphy v. New York etc. R. R. Co., 30 Conn. 184, 187. This court there said: "If to take one's liberty or one's property without justification is an injury, how much more is the taking of human life? The elementary books, in speaking of absolute rights, classify them thus: 1. The right of personal security; 2. The right of personal liberty; and 3. The right to acquire and enjoy property. If these rights are valued in this order of preference, then every man of common understanding would at once pronounce it absurd to hold that it is no injury to a person to take his life, while it is to strike him a light blow. Such a distinction is not worth talking about, and has no foundation or existence in the law, as it has none in common sense."

In the legislation of this state, statutes making wrongdoers liable in damages for mere loss of life have been quite common. The first printed edition of the statutes contained a provision of this kind. It was therein provided that if "any person shall lose his life" by means of a defective bridge or highway under certain circumstances, the wrongdoer should pay "to the parents,

Am. St. Rep., Vol. LXXXIV-12

husband, wife, or children, or next of kin to the person deceased," the sum of three hundred and thirty-four dollars, to be recovered in an action at law: Revision of 1808, p. 120. In 1851 an act was passed providing that "if any person shall be deprived of life" in consequence of certain acts or omissions of the servants of any railroad company, such company should pay to the parties named in the act the sum of one thousand dollars to be recovered in an action of debt on the statute: Pub. 618 Acts 1851, c. 43. In 1853 an act was passed providing that if the life of any person "shall be lost" under certain prescribed circumstances, by reason of the negligence of a railroad company, such company should be liable to pay damages not exceeding five thousand dollars, nor less than one thousand dollars, to the persons described in the act: Pub. Acts 1853, c. 74. In 1869 an act was passed providing that if the life of any person "shall be lost" by the neglect of a railroad company to maintain fences as prescribed in the act, such company should be liable to pay damages not exceeding five thousand dollars to the persons named in the act: Pub. Acts 1869, c. 48. In 1877 a general act was passed providing that for injuries “resulting in death" from negligence, "the party legally in fault for such injuries" should be liable for "just damages not exceeding five thousand dollars": Pub. Acts 1877, c. 78. These and other acts of a kindred nature, as they existed at the time of the Revision of 1888, were embodied in sections 1008 and 1009 of that revision, and it was under the provisions of these sections that the prescnt suit was brought.

This legislation clearly shows an intent to make wrongdoers, in certain cases and under certain limitations, liable in damages for mere loss or deprivation of life; and there is nothing in any legislation prior or subsequent to 1888 that indicates an intent on the part of the legislature to exempt such wrongdoers from such liability. We are not aware of any decision of this court that is inconsistent with the view here taken of the legislation in question, and we are satisfied that it is the correct one.

The next question relates to the measure of damages for mere loss of life. So far as we are aware, this question, in the precise form in which it is now presented, has not before been passed upon by this court, and we are at liberty to decide it upon principle. It is probably true, in point of fact, that in suits heretofore brought in this state for injuries resulting in death from wrongful act, the value of the life of the deceased has, with other elements, entered into the award of damages; but,