cognize the right to take out auxiliary letters of administration to the letters granted in the jurisdiction where the injury occurred.'

L. died in Kansas, from injuries there, for which it is claimed that, if death had not ensued, the Missouri Pacific Railway Company, the party inflicting them, would have been liable to an action for damages. The statute of that state provides that an action may be brought against the party by the personal representative of the deceased. The widow, appointed under the laws of Nebraska administratrix of L., brought in the circuit court of that state a suit against the railway company, and the suit was maintained, the right of action not being limited by the statute to a personal representative of the deceased appointed in Kansas, and amenable to her jurisdiction. It was held that the distribution of money, if recovered by the widow from the railway company. might be enforced by the courts of Nebraska in the manner prescribed by the statute of Kansas.'

No court in the state of New York has jurisdiction of an action by a nonresident against a foreign corporation on a cause of action which did not arise within the state. The appointment of a nonresident as an administrator in the state of New York does not authorize him to sue as a resident of the state, under New York Code of Civil Procedure, $ 1780.

An action by a widow for the death of her husband, occasioned in Arkansas, in which state, in the absence of administration, she can sue as the sole heir of the husband, and where exemplary damages are not allowed, cannot be maintained in Texas, where such damages are allowed, and where the widow of a man killed is the direct and immediate beneficiary, under the statute, suing in her own right, and where the period of limitation is different; especially when an administrator has been appointed in Arkansas pending the action, but was discharged and the administration closed to avoid a plea in abatement on that ground. Although a cause of action is given by the statutes of both states for wrongfully causing death, they are not sufficiently similar to warrant the courts of one state in enforcing the statute of the other.*

'Jeffersonville, M. & 1. R. Co. v. Hendricks, 41 Ind. 49; Hartford & N. H. R. Co. v. Andrews, 36 Conn. 213.

2 Missouri Pac. R. Co. v. Lewis, 2 L. R. A. 67, 24 Neb. 848.

Robinson v. Ocean Steam Nav. Co. 2 L. R. A. 636, 112 N. Y. 315.
4St. Louis, I. M. & S. R. Co. v. McCormick, 1 L. R. A. 804, 71 Tex. 660.

A widow cannot maintain an action in her own name to recover damages for the death of her husband in another state under the statute of the foreign state which expressly directs the action to be brought by the administrator, although it is for the ultimate benefit of the widow and next of kin, and although a closely similar statute in the state where the action is brought gives a right to sue in such case expressly and exclusively to the widow if there be one, for the benefit of herself and children. The statute of the state where the action is brought has no exterritorial force which can produce rights from the occurrence in the foreign state.' Where the statute of the foreign state expressly directs the action to be brought in the name of the personal representative of the deceased, the established rule is that statutory remedies are to be strictly pursued; and when the legislature has commanded one form, the court cannot say that another would serve the purpose equally well. This is peculiarly true where, in a state giving a right of action, the administration of law and equity is not only in separate forms but by separate tribunals. Where no person but the administrator has been clothed with the right no other person can sustain the action. *

§ 180. Rule of Damages in Actions for Death from Negligence.

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As the English statute did not give a new right of action, but simply continued the same right in the personal representative, that the deceased would have had for the injury, had he survived, the release of the action or a recovery during his life would end the right to claim damages, for the statute provides a new principle only as to the assessment of damages. This question, however is variously decided under the special statutes of the states, as in Iowa it is decided that a new right is given in the event 1 Usher v. West Jersey R. Co. 4 L. R. A. 261, 126 Pa. 206; Whitford v. Panama R. Co. 23 N. Y. 484; Woodard v. Michigan S. & N. 1. R. Co. 10 Ohio St. 121; Richardson v. New York Cent. R. Co. 98 Mass. 85; State v. Pittsburgh & C. R. Co. 45 Md. 41; Selma, R. & D. R. Co. v. Lacy, 43 Ga. 461; Anderson v. Milwaukee & St. P. R. Co. 37 Wis. 321; McCarthy v. Chicago, R. I. & P. R. Co. 18 Kan. 46.

Books v. Danville, 95 Pa. 166.

Read v. Great Eastern R. Co. L. R. 3 Q. B. 555, explaining Blake v. Midland R. Co. 18 Q. B. 93.

1

death is instantaneous. It is held to be a new right of action in New York, and compensatory only for pecuniary loss."

In an action by an administrator to recover damages for the death of his intestate alleged to have been caused by defendant's negligence, evidence that deceased was taken care of between the injury and his death by the defendants was held to have been properly excluded. The injured party during his lifetime, it was said, could recover for the bodily suffering. His personal representatives after his death cannot. If the defendants therefore could show in an action by the administrator, in mitigation, the payment of money, it will be but just that the personal representatives should be permitted to show the bodily suffering of the deceased, because the money might have been paid in consideration of these sufferings. The result would be to bring into an action of this kind an element of damages entirely improper. In Littlewood v. New York, 89 N. Y. 24, the language of the court simply indicated that proving a settlement by the deceased might

be in bar.

In Tennessee the old right survives, including the right to a recovery for pain and suffering, and also a new right for pecuniary loss to the next of kin. Contributory negligence either of the deceased or of the beneficiary under the statute is a cause of defense.'

Pecuniary loss is the foundation for the recovery. And the gen

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'Conners v. Burlington, C. & M. R. Co. 71 Iowa, 490.

2Quin v. Moore, 15 N. Y. 435.

Murray v. Usher, 46 Hun, 404.

Nashville & C. R. Co. v. Prince, 2 Heisk. 580.

Kelly v. Hendrie, 26 Mich. 255; Michigan Cent. R. Co. v. Campau, 35 Mich. 468; Pittsburgh, Ft. W. & C. R. Co. v. Vining, 27 Ind. 513; Hurst v. Detroit City R. Co. 84 Mich. 539; Bellefontaine R. Co. v. Snyder, 24 Ohio St. 670; Williams v. Texas & P. R. Co. 60 Tex. 205; Wright v. Malden & M. R. Co. 4 Allen, 289; Baltimore & O. R. Co. v. Fryer, 30 Md. 47.

Union Pac. R. Co. v. Dunden, 37 Kan. 1; Houston & T. C. R. Co. v. Cowser, 57 Tex. 293; Rockford, R. I. & St. L. R. Co. v. Delaney, 82 Ill. 198; Pennsylvania R. Co. v. Zebe, 33 Pa. 318; Ewen v. Chicago & N. W. R. Co. 38 Wis. 614; Donaldson v. Mississippi & M. R. Co. 18 Iowa, 280; Hutchins v. St. Paul, M. & M. R. Co. 44 Minn. 5; Van Brunt v. Cincinnati, J. & M. R. Co. 78 Mich. 530; Kelly v. Central R. Co. 5 McCrary, 653; Missouri Pac. R. Co. v. Henry, 75 Tex. 220; Gilligan v. New York & H. R. Co. 1 E. D. Smith, 453; Tomlinson v. Derby, 43 Conn. 562; Matthews v. Missouri Pac. R. Co. 26 Mo. App. 84.

eral rule is, that these statutes only authorize recovery in cases of pecuniary loss.'

Where the direct evidence, as in the case of a child, cannot be given of pecuniary loss, it is within the province of the jury to consider the occupation of the father, the age and sex of the child, the position in life of the family, to form an estimate of the damages with reference to the pecuniary injury-present or prospective-resulting to the next of kin. Under such a statute, where deceased left a parent entitled to his services, the law implies pecuniary loss, for which compensation may be given.' The loss is reckoned, not from the date of the injury, but from the time of the death. In many of the courts, while ruling that pecuniary loss must be established, it is not necessary to show that an actual claim existed upon the deceased for support, amounting to a legal right. The amount of damages to which a widow is entitled from a railroad company for the death of her husband, should not be reduced by any insurance on his life received by her."

§ 181. Statutes Regulating Damages for Death from Negligence.

In New York it was held no error in a court to refuse to charge that the damages in an action based on the statute should be restricted to the loss of services during the minority of a child, as the measure of damages would be the whole pecuniary loss occasioned by her death. Under the Civil Damage Act, chap. 646, of the Laws of 1873, and under the acts allowing the next of kin of 'Holton v. Daly, 106 Ill. 131; Van Brunt v. Cincinnati, J. & M. R. Co. 78 Mich. 530; Pennsylvania R. Co. v. Henderson, 51 Pa. 315; Telfer v. Northern R. Co. 30 N. J. L. 188; Pennsylvania Co. v. Lilly, 73 Ind. 254; Perry v. Georgia R. & Bkg. Co. 85 Ga. 193; Baldwin v. Western R. Corp. 4 Gray, 333; Louisville & N. R. Co. v. Orr, 91 Ala. 548; Staal v. Grand St. & N. R. Co. 107 N. Y. 625.

Ihl v. Forty-second St. & G. St. F. R. Co. 47 N. Y. 317; McIntyre v. New York Cent. R. Co. 37 N. Y. 287; Illinois Cent. R. Co. v. Weldon, 52 Ill. 290.

'Stafford v. Rubens, 1 West. Rep. 640, 115 Ill. 196.

*Atlanta & W. P. R. Co. v. Venable, 67 Ga. 697.

Illinois Cent. R. Co. v. Barron, 72 U. S. 5 Wall. 90, 18 L. ed. 591; Grotenkemper v. Harris, 25 Ohio St. 510.

Western & A. R. Co. v. Meigs, 74 Ga. 857. "Birkett v. Knickerbocker Ice Co. 41 Hun, 404.

one whose death has been caused by the wrong or carelessness of another to recover damages for such death, the amount of damages are exceedingly uncertain, problematical and contingent, and yet they must be left to the determination of the jury upon such facts as can be proved. '

The statute which gives a right in Alabama of action to the personal representatives of a person whose death was caused by the "wrongful acts or omission of another" and declares that he may "recover such sum as the jury may deem just," only applies to cases in which death resulted from the wrongful act or omis sion, leaving other actions for personal injuries to be governed as to the measure of damages by other statutory provisions, or by principles of common law.

The Illinois Revised Statutes,' limit the amount of damages to the pecuniary loss sustained by the widow and next of kin in an action for damages for death caused by the negligence of defendant; the language being "And in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $5,000." An averment in the complaint under this statute that by the death of the deceased, his widow and minor children named were deprived of their support, and said minors of their means of education, to the damage of plaintiff as administratrix the sum of $5,000; is sufficient to admit evidence to show that the beneficiaries designated by the statute have sustained pecuniary injury by the death of deceased."

It is entirely proper under the Illinois statute to show the amount of decedent's usual earnings, and that plaintiff was his widow, and that they had minor children whom he was bound by law to support, and who usually shared his income. But it is wholly immaterial whether such next of kin had or had not other

'Etherington v. Prospect Park & C. I. R. Co. 88 N. Y. 641; Houghkirk v. Delaware & H. Canal Co. 92 N. Y. 219.

"Code Ala. § 2641.

Code Ala. §§ 1699, 1700.

East Tennessee, V. & G. R. Co. v. King, 81 Ala. 177.

'Chap. 70, §§ 1 and 2.

Chicago & A. R. Co. v. Carey, 2 West. Rep. 73, 115 Ill. 115.