defeats the action. Where deceased leaves a widow, she may sue, and if no widow, the children may sue, and if neither are left surviving, then the other person dependent may sue.' In Illinois and Indiana, under the statute, an action for personal injury caused by negligence, resulting in death, survives, and must be prosecuted by the personal representatives of the deceased for the benefit of the widow and next of kin. Where the statute, as does Indiana Rev. Stat. 1881, p. 49, gives the right of action to be brought by the personal representatives, the damages to inure to the exclusive benefit of the widow, children or next of kin, if decedent leave neither wife, child, nor next of kin, the action is not maintainable.' In an action by an administrator against a railroad company for the death of his intestate caused by the negligence of the defendant, the widow of such decedent is a competent witness. Neither section 498 nor section 499 of the Indiana Code has any application to the case. In Iowa, the Code providing that the right of action for an injury causing death "shall be deemed a continuing one, and to have accrued to such representative or successor at the same time it did to the deceased if he had survived," gives only one right of action for such injuries. An administrator may maintain an action for injury to his intestate resulting in immediate death. Where the injured person survives the injury for but a moment, a cause of action (which survives to his representatives) accrues to him as certainly as if he had lived for a month or a year thereafter, the test being whether he lived after the injury, and not how long he lived. In Kansas a personal representative bringing an action to recover damages for the death of the in Chicago & R. 1. R. Co. v. Morris, 26 Ill. 400. 2 Beard v. Skeldon, 113 Ill. 584. Chicago & E. I. R. Co. v. O'Connor, 6 West. Rep. 773, 119 Ill. 586; Mayhew v. Burns, 1 West. Rep. 577, 103 Ind. 328. 4 Stewart v. Terre Haute & 1. R. Co. 1 West. Rep. 153, 103 Ind. 44. 5 Louisville, N. A. & G. R. Co. v. Thompson, 6 West. Rep. 555, 107 Ind. 442. "Iowa Code, § 2525. Elwell v. Chicago & N. W. R. Co. 29 Fed. Rep. 57. 8 Worden v. Humeston & S. R. Co. 72 Iowa, 201; Conners v. Burlington, C. R. & N. R. Co. 71 Iowa, 490. Kellow v. Central Iowa R. Co. 68 Iowa, 470. testate brings such action, not for himself or in the right of the estate, but as trustee for the distributees, the next of kin. ' In Kentucky the right is given to the personal representatives or widow or heir. The administrator of a person who has been willfully and maliciously killed cannot maintain an action for damages against the person killing him, or the person causing it to be done. Under Kentucky Gen. Stat. chap. 57, § 1, a railroad company is liable for the death of any person not in its employment, caused by ordinary negligence.* Sections 3391 and 3392 of Howell's Annotated Statutes of Michigan, provide as follows: "§ 3391. Whenever the death of a person shall be caused by wrongful act, neglect, or default of any railroad company, or its agents, and the act, neglect, or default is such as would (if death had not ensued) entitle the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the railroad corporation which would have been liable if death had not ensued shall be liable to an action on the case for damages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circumstances as amount in law to felony. 66 "§ 3392. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in any such action shall be distributed to the persons, and in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such amount of damages as they shall deem fair and just, to the persons who may be entitled to such damages when recovered: Provided, nothing herein contained shall affect any suit or proceedings heretofore commenced and now pending in any of the courts of this state." According to the decisions of the Supreme Court of Michigan bearing upon the construction of these sections, a right of action 'Union Pac. R. Co. v. Dunden, 37 Kan. 1. 'Ky. Gen. Stat. chap. 57, § 1. Morgan v. Thompson, 82 Ky. 383. Louisville & N. R. Co. v. Smith, 87 Ky. 501. will not arise for the negligent killing of a person by a railroad company, unless the deceased left some one dependent upon him for support or some one who had a reasonable expectation of receiving some benefit from him during his lifetime.' Under this statute, pecuniary loss must be pleaded and proved. Included within such a statute, pecuniary future loss may be proved.' Under the Code of Mississippi, 1880, § 1510, a mother, though sole parent, has no right of action for the wrongful killing of her minor child. It is held there that the use of the word "parent" in the statute has reference to a "father" "left" by "such deceased person." But where a minor, in the discharge of his duty as an employé of a railroad company, receives injuries through the negligence of the company, from which he dies three days afterward, his mother, being his only surviving parent, is entitled, by the common lawher son not having been emancipated to recover for the loss of his services from the time the injuries were received by him till his death, and for any incidental expenses incurred by her during that time for medical attention to, and care and nursing of him.' In Missouri the right of action accrues to a father or mother for the death of a child by negligence only when the child is a minor." It is held under a statute of that state giving the parent of a minor a cause of action for damages for death caused by negligence, when the minor is unmarried; that the fact that the minor was unmarried is jurisdictional and must be alleged in the petition and proved. * Under this statute authorizing a suit by the parents against a defendant who has negligently caused the death of their child, the plaintiffs are competent witnesses. 8 'Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 487; Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205; Van Brunt v. Cincinnati, J. & M. R. Co. 78 Mich. 530; Cooper v. Lake Shore & M. S. R. Co. 66 Mich. 261. 2 Hurst v. Detroit City R. Co. 84 Mich. 539. 3 Staal v. Grand St. & N. R. Co. 107 N. Y. 625. 4 Amos v. Mobile & O. R. Co. 63 Miss. 509. 5 Natchez, J. & C. R. Co. v. Cook, 63 Miss. 38. Parsons v. Missouri Pac. R. Co. 12 West. Rep. 615, 94 Mo. 286; James v. Barker v. Hannibal & St. J. R. Co. 91 Mo. 86. 8 Bell v. Hannibal & St. J. R. Co. 4 West. Rep. 391, 86 Mo. 599. CHAPTER XXX. ACTIONS AGAINST CARRIERS, -Continued. § 171. Statutory Provisions on Negligence Causing Death. § 174. When Repeal does not Affect Pending Actions. § 175. Form of Action Determines Measure of Relief. § 176. Evidence of Authority to Bring the Statutory Action. § 171. Statutory Provisions on Negligence Causing Death." In New York Code, 1883, chap. 15, §§ 1902, etc., a cause of action for the death of decedent leaving a husband, wife, or next of kin is given to his executor or administrator. The statute of New York on the subject of actions for death by negligence, does not apply to a case where the death did not occur within the state of New York, nor in waters subject to its jurisdiction. In a case often referred to, the point really decided was that where the person injured brought suit and recovered in his lifetime, his personal representatives could not maintain an action after his death under the statute. Since the injured party had recovered his damages, the defendant would not thereafter "have been liable had death ensued;" nor would the neglect of it, thereafter "entitle the party injured to maintain an action," if the death had not ensued. The decision would seem to rest upon the fact that at the time of death the injured party had no right of action and the defendant was under no liability.* · Under the South Carolina Gen. Stat. § 2184, giving an action for the death of a person to the wife, husband, parent and child'North Carolina, by 1 Code, 1883, § 1498; Ohio, in 2 Rev. Stat. 1884, § 6134; 3 Rev. Stat. § 6135; Oregon, by General Laws, § 367; South Carolina, by Stat. 1882, § 2183. Splittorf v. State, 10 Cent. Rep. 699, 108 N. Y. 205; Brown v. Buffalo & S. Metcalfe v. The Alaska, 130 U. S. 201, 23 L. ed. 923. 4 Littlewood v. New York, 89 N. Y. 24. ren, it was not necessary that the beneficiaries should have had any legal claim for support upon the person killed. In Pennsylvania,' the action is given to the husband, widow, children or parents in succession and to no other relatives; the administrator cannot sue; and when a minor leaves a widow, the right to sue vests solely in her. An objection to defective parties -as joinder of the widow and children in an action for negligence in causing the death of the husband and father-will be disregarded on error where it appears that the plaintiff in error went to trial below without objecting and the joinder did not affect the trial below or its results." In Rhode Island,' the action is given to the husband, widow and next of kin of deceased and any person having pecuniary interest in his life. In Tennessee, by Code, § 3130, to the personal representatives or widow or children. The statute provides for the recovery of damages for the death of a person, caused by negligence, and for the benefit of the surviving widow and children.* The widow may dismiss the suit even against the wishes of the child." Under the statutes of Tennessee, which confer a right of action upon the personal representative of the decedent, whose death is caused by the wrongful act or omission of another, for the wrong sustained by the deceased, and a right of action upon his next of kin, for the injury resulting to them from his death, when the next of kin of such decedent is the sole distributee of his estate and the administrator thereof, he may recover damages on both of the grounds named in the statute.* 9 And in Texas, the action is authorized by all the parties entitled to the proceeds or by any one or more of them, for the benefit of all. The husband, wife, children and parents being named. 12 Bright. Purd. Dig. Stat. 1873, p. 1093. Books v. Danville, 95 Pa. 158. Leh gh Iron Co. v. Rupp, 100 Pa. 95. Philadelphia & W. B. R. Co. v. Conway, 3 Cent. Rep. 244, 112 Pa. 511 Nashville &C. R. Co. v. Prince, 2 Heisk. 580; Fowlkes v. Nashville & D. R. 8 Illinois Cent. R. Co. v. Crudup, 63 Miss. 291. Rev. Stat. 1879, Title LII. art. 2904. |