In the field of private substantive law we may furnish the following illustrations :
In another case,18 we find a decision that the Civil Code19 cannot be invoked in favor of the family, the father of which was drowned by falling into an insufficiently guarded stream which ran through a village. On this decision one may comment to the effect that the number of beneficiaries in contemplation ought not indeed to be extended too far, for if that were done perhaps even the State might sue for damages because it lost a citizen. Yet I am unable to see what there is to prevent the court from holding that those members of the family who were entitled to support by the deceased were entitled to the benefit of the code provision, when the penal provisions 20 of the concurrent Penal Code were enacted for that purpose. Surely the highest court in the German Empire may claim authority sufficient to declare this to be law on its own responsibility. That would be a great deal more satisfactory than its hiding behind the narrowest construction of the letter of the statute.
The same criticism is true of the decision found in still another case.21 There the mother of a girl who had, at her own request, been killed by her lover and been buried in the "suicide corner" of the cemetery at Dussel-dorf, demanded reimbursement out of the estate of the lover for the cost of transferring the girl's body to Berlin. The court denied the claim. Here is an issue between the heart of a mother and the purse of a murderer. Was it necessary to save the latter?
Absolutely inhuman! - this is an expression I used regarding this case before I knew of the identical criticism by Fuchs 22 - it seems to me absolutely inhuman, where the judge, called in to draw a will and finding the testatrix in a paralyzed condition, is required, in order to comply with the letter of the statute, to have the dying person make an express declaration that she is unable to write.23
18 RGZ 64, p. 344. 19 BGB 823, par. 2. 20 Sec. 307, subs. 12. 21 RGZ 66, p. 305.