§ 167. Abatement of Suit by Death of Party Injured-Federal and State Courts.

The survivability of a right of action is a property right in respect to which the Federal courts are governed by local law.' By numerous decisions it is established as part of the common law of this country that where a state makes conditions upon which foreign corporations may do business, and provides a method whereby the courts of the state may acquire jurisdiction over them by service of process upon designated agents within the state, a foreign corporation, subsequently doing business in the state, is deemed to consent to the conditions and to be bound by the service of process in the manner specified by the statute.' In harmony with these principles, a railroad company, by constructing and acquiring the ownership of its lines of railway in a state, and transacting its business there, consents to become subject to the laws of the state governing the commencement and prosecutions of suits in the courts of the state, and to be bound by the service of process upon its agents in all cases in which it should be a party. Where its franchise has not been transferred with the consent of the state, whoever, with its knowledge and consent, has the actual control and superintendence of its railway, must be regarded as its authorized agent and representative, and it will be bound by the service of process upon such an agent."

Without such authority and consent, a lease is binding only upon the parties to it. As between themselves, it may limit their rights and fix their responsibilities; but a plaintiff, as a member of

Warren v. Furstenheim, 1 L. R. A. 40, 35 Fed. Rep. 691; Hatfield v. Bushnell, 1 Blatchf. 393; Barker v. Ladd, 3 Sawy. 44; Hodge v. North Missouri R. Co. 1 Dill. 104; Green v. Watkins, 19 U. S. 6 Wheat. 260, 5 L. ed. 256; Clarke v. Mathewson, 37 U. S. 12 Pet. 164, 9 L. ed. 1041; Trigg v. Conway, Hemp. 711; Jones v. Van Zandt, 4 McLean, 604; Mellus v. Thomp son, 1 Cliff. 125; Witters v. Foster, 23 Blatchf. 457, 26 Fed. Rep. 737; Peake v. Baltimore & O. R. Co. 26 Fed. Rep. 495; Schreiber v. Sharpless, 110 U. S. 76, 28 L. ed. 65, 17 Fed. Rep. 589.

*Gibbs v. Queen Ins. Co. 63 N. Y. 114; Mc Nichol v. United States M. R. Agency, 74 Mo. 457; Ehrman v. Teutonia Ins. Co. 1 McCrary, 123, 1 Fed. Rep. 471; National Bank of Commerce v. Huntington, 129 Mass. 444; Lafayette Ins. Co. v. French, 59 U. S. 18 How. 404, 15 L. ed. 451; Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 81, 20 L. ed. 358; Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222; Pembina Con. S. Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650.

Thomas v. Placerville Gold Quartz Min. Co. 65 Cal. 600.

the public, is in no way affected by it. His rights are the same as if no such contract had been made or attempted.'

The laws of the state providing for the service of the process of the state courts in actions at law furnish the rules for procedure in such cases in the United States courts so that whatever would be lawful service of process to bring a party into court, if the action were in a court of competent jurisdiction under the state government, is lawful and sufficient for the purpose in actions commenced in the United States courts. An action for damages for a death caused by negligence, where the local law authorizes such action, may be brought in the Federal court by the administrator, against a citizen of another state, although deceased was a citizen of the same state with defendant, where his widow and children still reside. If the action be in contract against a ship it may proceed in rem and survive to the administrator."

The suitor may have a remedy in such a case in a state court, and even the admiralty courts have jurisdiction where the right of action was created by state statute, enacted subsequent to the passage of the judicial act. But the admiralty courts of the United States cannot take cognizance of a suit to recover damages for the death of a human being on the high seas, or in waters navigable from the sea caused by negligence, in the absence of an Act of Congress, or the statute of a state giving a right of action therefor."

State courts may exercise jurisdiction and give a remedy for consequential injury growing out of a maritime tort, for instance, an act causing death, where no remedy for such injury exists in

'Lakin v. Willamette, V. & C. R. Co. 13 Or. 436; Braslin v. Somerville H. R. Co. 145 Mass. 64; Palmer v. Utah & N. R. Co. (Idaho), Feb. 8, 1888; Washington, A. & G. R. Co. v. Brown, 84 U. S. 17 Wall. 445, 21 L. ed. 675; Chicago & N. W. R. Co. v. Crane, 113 U. S. 433, 434, 28 L. ed. 1067; Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837. 'Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; New England Mut. L. Ins. Co. v. Woodworth, 111 U. S. 146, 28 L. ed. 381; Re Louisville Underwriters, 134 U. S. 493, 33 L. ed. 994; 2 Morawetz, Priv. Corp. § 983; VanDresser v. Oregon R. & Nav. Co. 48 Fed. Rep. 202.

'Harper v. Norfolk & W. R. Co. 36 Fed. Rep. 102.

The City of Brussels, 6 Ben. 370.

The Columbia, 27 Fed. Rep. 704, American S. B. Co. v. Chace, 83 U. S 16 Wall. 522, 21 L. ed. 369.

The Harrisburg, 119 U. S. 199, 30 L. ed. 358; Metcalfe v. The A'aska, 130 U. S. 201, 32 L. ed. 923.

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the admiralty courts. The acts of assembly of Pennsylvania approved April 15, 1851, and April 26, 1885, do not by their terms create a lien for death by negligence upon the high seas; and, as there is no jurisdiction outside of statutory provision, none can be sustained.' Any defense that will bar recovery in the state courts in an action for negligence causing the death of a person must be held equally good in admiralty. And while the right to revive an action in the Federal court is made by U. S. Rev. Stat. § 955, to depend upon the survivability of the cause of action, these courts are bound by a local law.*

The survivability of a local action is governed by the local law," such as that of Tennessee,' which saves an action already commenced, although the right of action would not have survived except for the previous commencement of the suit. Under this Act the survivability of a cause of action in all cases except for an injury resulting in death, remains as at common law unless an action has already been brought before death, which would otherwise abate the cause of action. A personal action under the Tennessee code is not abated by the death of a party except when it affects the character of the plaintiff only. The decisions in other states depend upon the particular statutes which have been enacted in most of them.

In Pennsylvania it is held that under the statute the liability for negligently causing death does not survive against the administrator; but that under the Constitution the right of action for injuries resulting in death shall survive; saving the cause of action but not the liability. But, it is said, till a right exists, there can be no remedy; but when the right is given whether by the common law or statute, there must be some remedy. The right of the next of kin to compensation for a pecuniary injury, is given by 1American S. B. Co. v. Chace, 83 U. S. 16 Wall. 522, 21 L. ed. 369. 'Pub. Laws, 674, 309.

3 Welsh v. The North Cambria, 40 Fed. Rep. 655.

The A. W. Thompson, 39 Fed. Rep. 115.

Foulkes v. Nashville & D. R. Co. 9 Heisk. 829; Collins v. East Tennessee &
V. R. Co. 9 Heisk. 841; Witters v. Foster, 26 Fed. Rep. 737.

'See Warren v. Furstenheim, 1 L. R. A. 40, note, 35 Fed. Rep. 691.
'Carr. & N. Tenn. Stat. 68; Thompson & S. Code, §§ 2845, 2846; Mill. &
V. Code, §§ 3559, et seq.

Moe v. Smiley, 3 L. R. A. 341, 125 Pa. 136.

statute, and to enforce it a common law action is given to the personal representatives. It is this common law remedy that is saved. The supreme court of New York, it was ruled, had jurisdiction of an action against the owners of a steamboat navigating Lake Champlain for causing death of plaintiff's intestate by negligence while a passenger on their boat within said state. '

Under N. Y. Code Civ. Proc. § 764, an action for damages for a personal injury abates on the death of plaintiff before verdict, report, or decision upon the issues; and the word "decision" refers to a decision by the court upon a trial without a jury. Hence neither a nonsuit nor an order of reversal thereof by the general term "is a decision," within the meaning of that section. The Missouri statute in respect to the abatement of an action for personal injuries by the death of a party being only declaratory of the common law, such an action abates by the death of the defendant pending appeal, and cannot be revived in the name of his administrator.

The abatement of an action for personal injuries on the death of the plaintiff before verdict, report, or decision, as prescribed by the New York statute, is not affected by the stipulation required by the code for judgment absolute in case of affirmance upon appeal from an order granting a new trial.'

In Maryland an action by a husband to recover damages for the negligent killing of his wife, abates on the death of the husband; but the statute which provides for the survival of personal actions, expressly exempts from its operation actions for personal injuries. Although the action is brought in the name of the state, yet it is founded entirely on the statute which provides that every such action shall be for the benefit of the wife, husband, parent and child, or the person whose death shall have been caused, "and shall be brought in the name of the state of Maryland for the use of the person entitled to damages." There is no contractual relation in such cases between the state, the

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See Ryall v. Kennedy, 8 370; Plummer v. Webb, 1 Sherlock v. Alling, 93 U.

'Dougan v. Champlain Transp. Co. 56 N. Y. 1.
Jones & S. 347; The City of Brussels, 6 Ben.
Ware, 75; Smith v. Brown, L. R. 6 Q. B. 729;
S. 99, 23 L. ed. 819; Boutiller v. The Milwaukee, 8 Minn. 97.

2Corbett v. Twenty-third St. R. Co. 24 N. Y. S. R. 538.

3Rev. Code, Maryland, 1878, p. 592, § 32.

Rev. Code, 78, p. 724.

legal plaintiff, and the defendant. The state in fact is merely a formal party, and not liable in any manner, for the costs; and in such circumstances, it cannot be successfully contended that upon the death of the equitable plaintiff, the suit could have been carried on in the name of the state against the defendant.'

Revised Statutes of Wisconsin, § 1339, very clearly contemplates that the party who shall give the notice required by that section is the party injured through the negligence of the defendant; in fact no one can maintain an action under that section other than the party injured. If the party entitled to bring the action die before judgment rendered in his favor, all the right under that section is lost."

In Connecticut, by the common law an action for personal injuries does not survive to the administrator of the person injured; and there is no statute in that state by virtue of which a common law action for personal injuries is revived, or made to survive to an administrator of the person injured. The fact that defendant railroad was incorporated in both states, and that deceased was a citizen of Massachusetts, cannot affect liability for an accident occurring in Connecticut.'

In some of the states the maxim actio personalis moritur cum persona has been reformed by statutory enactment from time to time enlarging the class of causes of action which survive, until its effect as to personal claims dying with the person applies only to claims for naked deceits, and for injuries to the person or char

acter.'

Care is required not to be misled by the decisions, as it is doubtful how far our courts may follow the modern English rulings expounding the operation of the ancient Act of Parliament, 4 Edward, III., chap. 7.

The distinction is between the abatement of a suit by death of one or both of the parties to it, and the abatement of a cause of

'State v. Baltimore & O. R. Co. 69 Md. 339.

Mc Keigue v. Janesville, 68 Wis. 50; Randall v. North Western Teleg. Co. 54 Wis. 140; Meese v. Fond du Lac, 48 Wis. 323.

'Murphy v. New York & N. H. R. Co. 30 Conn. 184.

Haight v. Hayt, 19 N. Y. 464; McKee v. Judd, 12 N. Y. 622; Yertore v. Wis wall, 16 How. Pr. 8; Smith v. New York & N. H. R. Co. 16 How. Pr. 277; Fried v. New York Cent. R. Co. 25 How. Pr. 285; Elder v. Bogardus, Hill & Denio, Supp. 116; Dininny v. Fay, 38 Barb. 18.