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it is wholly inconsequential whether the right has been conferred by statute or by common law, so far as the procedure in court is concerned.'
Under a statute “that upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death,” ' in an action brought by the personal representatives of a deceased minor against a railway company to recover damages
a for the death of the intestate an issue of fact was presented by the pleadings as to whether the letters of administration were properly granted upon the estate of the minor; it being claimed by the company that there was no estate to be administered.' The records and finding of the probate court introduced in evidence showing that the minor died leaving among other things “an estate of personal articles," made a prima facie case. The evidence of the father of the minor was introduced which tended to prove that his child died without leaving any estate; but this evidence of the father as against the general finding of the jury was not conclusive and it cannot be said as a matter of law upon the record against the general finding of the jury that the letters of administration were granted without jurisdiction.'
Where the record shows that one of the plaintiffs testified that they were the parents of the child aud had also shown that the defendants admitted that the child alluded to by the witness was the one run over and killed by the car mentioned in the petition and at the time mentioned, there was sufficient evidence that plaintiffs were the parents of the deceased.
Union R. & Transit Co. v. Shacklet, 8 West. Rep. 63, 119 Ill. 232.
ACTIONS AGAINST CARRIERS, Continued.
& 177. Proper Plaintiff in Action for Damages for Death. § 178. Action out of Jurisdiction where Injury Occurred. 8 179. Who may Bring the Action in Foreign Jurisdiction. § 180. Rule of Damages in Actions for Death from Negligence. § 181. Statutes Regulating Damages for Death from Negligence. $ 182. Statutory Provisions for Distribution of Recovery for Death
$ 177. Proper Plaintiff in Action for Damages
Some of the statutes provide that the action shall be brought in the name of the personal representatives, and this has been construed to mean the executor or administrator, and not the next of kin. But a foreign administrator cannot sue under the statute.'
In England and Pennsylvania the action is given for the benefit of the immediate family of the deceased, to the exclusion of the next of kin, and includes only husband and wife, parents and children. As the remedy exists, and is created only by statute, it follows that it can only be pursued in the mode and under the conditions specified therein. If the statute provides that the action shall be brought by the executor or administrator of the deceased, no other person can maintain a., action. And if the damages recovered are for the benefit of the husband, widow, parent, or next of kin, the declaration must allege the fact, and Kramer v. San Francisco Market St. R. Co. 25 Cal. 434: Indianapolis & St.
L. R. Co. v. Stout, 53 Ind. 143; Needham v. Grand Trunk R. Co. 38 Vt. 294; Whiton v. Chicago & N. W. R. Co. 21 Wis. 305; Smith, Neg. Whit.
ed. 433. SIllinois Cent. R. Co. v. Cragin, 71 III. 177; Limekiller v. Hannibal & St. R.
Co. 33 Kan. 83. See Hulbert v. Topeka, 34 Fed. Rep. 510; Richardson v.
ville, 95 Pa. 158.
the existence of such beneficiary, as, if no beneficiary survives the deceased, no recovery can be had. Where the statute is for the beneat of the husband, widow, parents, and the children of the parents killed, only one action can be maintained. In Arkansas the personal representative, or if none, the heir at law may bring the suit.' In Alabama the same rule exists. In Colorado the action is given to the husband or wife, or if none, to the heirs or to the father or mother.' So in California, (Amendment, March 21, 1874, SS 376, 377). It is given by the General Statutes in Connecticut (Rev. Stat. 1883), to the personal representative. Under the Code of Delaware, p. 614, the widow, or if none, the per
onal representative, may sue. Under the laws of Florida, 1883 , p. 59, the widow or husband, or if none, the minor children, or persons dependent or personal representatives may sue in this order.
In Georgia, $ 2971 of the Code, the action is given first to the widow and then to the child. · The husband cannot sue for the death of his wife under the Code, $ 2971; and whatever would defeat his action will defeat an action by the widow of a decedent,' but a child may sue for the death of its mother. In an action by a mother for the death of her minor son, a declaration counting apparently on the homicide, and not the loss of service, and there being no claim of right in the mother to the son's service or to recover hire for the same, does not state a cause of action.' Under the Georgia Statute, where the minor son supports his mother, separated from her husband, she may recover for his death." Children are entitled, where they have been dependent upon Schidarz v. Judd, 28 Mion. 371; Stewart v. Terre Haute R. Co. 1 West. Rep.
152, 103 Ind. 44; Indianapolis, P. & C. R. Co. v. Kerly, 23 Ind. 133; Jeffersonville R. Co. v. Suuyne. 26 Ind. 477; Jeffersonville, M. & 1. R. Co. v. Hendricks, 41 Ind. 48; Thompson v. Young, 51 Ind. 599; Galvin v.
Crouch, 65 Ind. 56; Chicago & R. I. R. Co. v. Morris, 26 III. 400. ? Houston & T. C. R. Co. v. Mnoore, 49 Tex, 31; Galveston, I. & S. A. R.
Co. v. LeGierse, 51 Tex. 189. 3 $ 5225, Digest 1884. *King v. Henkie, 80 Ala. 505. Gen. Stat. SS 877, 1030, of the laws of 1877. Parris v. Philadelphia W. & B. R. Co. (Del.) May 21, 1889. ? Georgia R. & Bkg. Co. v. Wynn, 42 Ga. 331; Atlantı W. P, R. Co. v.
Webb, 61 Ga. 586; Berry v. Northeastern R. Co. 72 Ga. 137. 8 Allanla & W. P. R. Co. v. Venable, 65 Ga. 55. 9 Smith v. East & W. R. Co. 84 Ga. 183. i' East Tennessee, V. & G. R. Co. v. Muloy, 77 Ga. 237.
ent to maintain an action in case of the death of that parent. Where the right of action is given to one depending upon a person killed, there must be proof of the fact of support.' The right of an adult child to recover has been decided by the courts. : In Illinois and Indiana the action is prosecuted by the personal representative of the deceased.“ In Illinois the widow may sue, or if there be none surviving, the children, and if there be no children, the person who was rightfully dependent on the deeased.' In Indiana if there be neither widow, child or next of kin, no action can be brought. Indiana Revised Statutes, 1881,
266, providing that in certain cases a guardian may sue for injury or death of his ward and that in a suit for injury the damages shall be for the benefit of the ward, gives a guardian no right of action for the death of a minor instantly killed, who has a mother living, where the guardian has paid no expenditures from the property of the ward, as a result of the accident.'
In Indiana the statute gives to the parent on the death of his child during minority, caused by the negligence of another, a remedy for such injury in his own right, and if the relation of parent and child continues after majority, the parent receiving support or services may maintain the action.
Where paternal relation does not exist the action is brought by the personal representatives, regardless of age, and when the father sues it is not necessary to state who are next of kin or that there are any." Under this statute the guardian may maintain an action.'
In Iowa the administrator may maintain action. If he survives a moment, the personal representative sues.
Scott v. Central R. Co. 77 Ga. 450, *Clay v. Central R. & Bkg. Co. 84 Ga. 345. *Central R. Co. v. Roach, 70 Ga. 434. "Chicago & E I. R. Co. v. O'Connor, 6 West. Rep. 773, 119 Ill. 536; Maghero
v. Burns, 1 West. Rep. 577, 103 Ind. 328. 5 Beard v. Skeldon, 113 III. 584. *Slevart v. Terre Haute & I. R. Co. 103 Ind. 44. Louisville N. A. & C. R. Co. v. Goodykoontz, 119 Ind. 111. 8 Mayhero v. Burns, 1 West. Rep. 577, 103 Ind. 328. 'Louisville, N. A. & C. R. Co. v. Goodykoontz. 119 Ind. 111. 10 Worden v. Humeston & S. R. Oo. 72 Iowa, 201. " Kelloro v. Central loroa R. Co. 68 Iowa, 470.
A personal representative is entitled to bring the action in Kansas and Michigan,' and Nebraska.'
In Kentucky personal representatives cannot maintain an action where the intestate left neither widow nor children, under a statute providing that, if a person is killed through the willful neglect of another, the widow, heir, or personal representative shall have the right to sue therefor. No action under this statute can be maintained, where injury is willful. Nor can the representative of an employé recover, under the statute giving the right of action to others. Under Ky. Gen. Stat. chap. 57, § 3, providing that the widow, heir, or personal representative of one killed by another’s negligence may sue for damages, the word "heir” means “child," and does not include parents or collateral relatives.' In an action for the death of a person by the negligence of the employés of a railroad company, the degree of the negligence alleged determines whether the action is brought under Ky. Gen. Stat. chap. 57, § 1, giving to the personal representative the right to recover in the same manner that the person might have done for an injury where death did not ensue, or under $ 3, giving the widow, heir, or personal representative a right of action for punitive damages.' The right of the widow and children to bring the action have been determined under the statute, as has also the right of representatives.
In Louisiana, under the civil code, the minor children or widow, or if none, the parent may sue.
'How. Stat. SS 3391, 3392, 8313 and 8314. ? Union Puo. R. Co. v. Dunden, 37 Kan. 1; Hulbert v. Topeka, 34 Fed. Rep.
510; Wilson v. Bumstead, 12 Neb. 1. 3 Ky. Gen. Stat. chap. 57, 8 3; Koening v. Covington (Ky.) 11 Ky. L. Rep.
251; Kentucky Cent. R. Co. v. Wainwright (Ky.) March 20, 1890. *Morgan v. Thompson, 82 Ky. 383; Winnegar v. Central Pass. R. Co. 85 Ky.
547. 5Cincinnati, N. 0. & T. P. R. Co. V. Adams (Ky.) 11 Ky. L. Rep. 833. Jordan v. Cincinnati, N. 0. & T. P. R. Co. (Ky.) 11 Ky. L. Rep. 204. "Givens v. Kentucky Cent. R. Co. (Ky.) 11 Ky. L. Rep. 452; Hennings v.
Louisville Leather Co. (Ky.) 11 Ky. L. Rep. 544; Louisville & N. R. Co. v.
Coppage (Ky.) 12 Ky. L. Rep. 200. 8 Henderson v. Kentucky Cent. R. Co. 86 Ky. 389. 'Morris v. Louisville & N. R. Co. (Ky.) 11 Ky. L. Rep. 698. 10 Laws 1884, p. 94, Rev. Code, p. 427; Mobile L. Ins. Co. v. Brame, 95 U. S.
754, 24 L. ed. 580.