vessels for the death of a person caused by the negligence of the officers.' Under a statute of New York giving a right of action for wrongfully or negligently causing the death of any person, an action may be maintained for negligently causing the death of a citizen of New York on the high seas, on a vessel hailing from and registered in a New York port, and employed by the owners at the time in their own business.2 In Massachusetts it has been held that the action would not lie where the death was instantaneous; but this is contrary to the weight of authority. Where the death is not instantaneous, there are two causes of action,-one for mental and bodily suffering before death, and the other for the loss of life. Both may be prosecuted by the personal representative, and one is not a bar to the other.5

§ 1018. Who may Sue - And for Whose Benefit.Lord Campbell's act gives the action to the executor or administrator of the person killed, and so do the statutes of many of the states. Where the action is given to the "personal representatives," this means the executor or administrator, and not the next of kin. When the statute

1 Steamboat Co. v. Chase, 16 Wall. 522; The City of Brussels, 6 Ben. 370. 2 McDonald v. Mallory, 77 N. Y. 546; 33 Am. Rep. 664. Contra, Armstrong v. Beadle, 5 Saw. 484.

Mann v. R. R. Co., 9 Cush. 108; Hollenbeck v. R. R. Co., 9 Cush. 478; Bancroft v. R. R. Co., 11 Allen, 34; Kennedy v. Standard Sugar Refinery, 125 Mass. 90; 28 Am. Rep. 214; Moran v. Hollings, 125 Mass. 93. And see Hansford v. Payne, 11 Bush, 380.

Murphy v. R. R. Co., 30 Conn. 184; 29 Conn. 496; Nashville etc. R. R. Co. v. Prince, 2 Heisk. 580; Brown v. R. R. Co., 22 N. Y. 191; Whitford v. R. R. Co., 23 N. Y. 465; Connors v. R. R. Co., 71 Iowa, 490; 60 Am. Rep. 814.

Needham v. R. R. Co., 38 Vt. 294. Contra, Hansford v. Payne, 11 Bush, 380; Connor v. Paul, 12 Bush, 144.

And an administrator may be appointed to bring it even where there

is no other estate: Hartford R. R. Co. v. Andrews, 36 Conn. 213. Contra, Perry v. R. R. Co., 29 Kan. 420, holding that the statutory right of action for death by wrongful act is not an "asset" of the estate of the deceased. Therefore if it is essential to the grant of letters testamentary that the deceased should either have been a resident of the county, or should have had assets therein, the grant of letters upon the estate of a non-resident who had no other assets in the county is void.

7 Hagan v. Kean, 3 Dill. 124; Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 553; Drew v. R. R. Co., 5 Chic. L. N. 314; Kramer v. R. R. Co., 25 Cal. 434; Whiton v. R. R. Co., 21 Wis. 305; Boutiller v. Milwaukee, 8 Minn. 97; Needham v. R. R. Co., 38 Vt. 294; Indianapolis etc. R. R. Co. v. Stout, 53 Ind. 143; Woodward v. R. R. Co. 28 Wis. 400.

makes the widow and next of kin beneficiaries, the action may be maintained where there is a widow and no kindred, or where there is next of kin and no widow. It has been' held that it is not material how remote the relationship may be, if the person claiming is dependent upon the deceased for support.2 Where the statute provides that the recovery shall be for the exclusive benefit of the "next of kin," it is sufficient to maintain the action if there be either a widow or next of kin surviving, but there must be at least one surviving relative of the class named in the statute. An illegitimate child is not a "child," but it is next of kin to its mother. A statute limiting the right of action to the widow, and if no widow then to the child or children, for the homicide of the husband or parent, gives no right of action to a husband for the death of his wife. A child en ventre sa mere is entitled to damages for the death of its father."

3

Where it is provided that "a widow, and if no widow a child or children, may recover for the homicide of the husband or parent," if the widow sues and marries pending the suit, she may proceed to judgment notwithstanding the marriage. If she dies pending the suit, the action and the right of action survive to the children, whose damages will be measured by the injury to themselves. Where the widow brings suit and carries it to

8

1 Oldfield v. R. R. Co., 14 N. Y. 310; Haggerty v. R. R. Co., 31 N. J. L. 349; Johnston v. R. R. Co., 7 Ohio St. 336; 70 Am. Dec. 75; Kansas etc. R. R. Co. v. Miller, 2 Col. 442.

2 Chicago etc. R. R. Co. v. Shannon, 43 Ill. 338; Quincy Coal Co. v. Hood, 77 Ill. 68; Kemper v. Harris, 25 Ohio St. 510.

3 Safford v. Drew, 3 Duer, 627; Lucas. R. R. Co., 21 Barb. 245; Green v. R. R. Co., 16 How. Pr. 263; 31 Barb. 260; Baltimore etc. R. R. Co. v. Gettle, 3 W. Va. 376; Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 553; McMahon v. New York, 33 N. Y. 642; Haggerty v. R. R. Co., 31 N. J. L.

judgment in her own name, the damages which can be considered are only her own damages, and not those suffered by the children also. A wife is not prevented from maintaining an action for the negligent killing of her husband by the fact that she had been living in separation from him.2 In some states, the father, or if he is dead the mother, may bring suit, if the person killed was a minor child. Husband and wife are not next of kin to each other. In Pennsylvania, the action does not lie in favor of the parents where a son leaves a widow.5 In Texas, the action lies though the plaintiff's son was of age. A statute giving a right of action to children will not extend to grandchildren." Where a widow or child "may recover for the homicide of the husband or parent," minor children may recover for the homicide of the mother. Where "a widow, or if no widow a child or children, may recover for the homicide of the husband or parent," the adult child of one who left no widow cannot recover. Where a woman four or five months pregnant fell on a defective highway, and was delivered of the child, which survived but a few minutes, the child was not a "person" within the statute giving a cause of ac

1 Macon R. R. Co. v. Johnson, 38 Ga. 409.

Dallas etc. R. R. Co. v. Spicker, 61 Tex. 427; 48 Am. Rep. 297.

3 See Ala. Code, sec. 2899 (1876); Frank v. R. R. Co., 20 La. Ann. 25; Walters v. R. R. Co., 36 Iowa, 458; Muldowney r. R. R. Co., 36 Iowa, 462; Oldfield v. R. R. Co., 3 E. D. Smith, 103; 14 N. Y. 310; Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 553; Quin v. Moore, 15 N. Y. 432; McMahon v. New York, 33 N. Y. 642; Ihl v. R. R. Co., 47 N. Y. 317; 7 Am. Rep. 450; Louisville etc. R. R. Co. v. Connor, 9 Heisk. 19.

Townsend v. Radcliffe, 44 Ill. 446; Administratrix of Dunhene v. Ohio Life Ins. Co., 1 Disn. 257; Lucas v. R. R. Co., 21 Barb. 245; Green v. R. R. Co., 32 Barb. 25; Dickens v. R. R. Co., 23 N. Y. 158; Worley v. R. R.

Co., 1 Handy, 481; Drake v. Gilmore, 52 N. Y. 389. See Steele v. Kurtz, 28 Ohio St. 191. Where the action is given for the benefit of the widow and next of kin, if the action is brought for the killing of the wife, the husband is entitled as next kin to such share as he would take in her estate under the statute of distributions; the words "next of kin" being used in the statute in this peculiar

sense.

5 Lehigh Iron Co. v. Ruff, 100 Pa. St. 95.

6 Houston etc. R. R. Co. v. Cowser, 57 Tex. 293.

7 McCutcheon v. Receivers, 3 Cent. L. J. 635.

8 Atlanta etc. R. R. Co. v. Venable, 65 Ga. 55.

9 Mott v. R. R. Co., 70 Ga. 680; 48 Am. Rep. 595.

tion for negligent death to the administrator.1 Where the husband and wife and children all perished in the same disaster, no right of action survived, though the wife might slightly have outlived her husband. The money recovered by the personal representative in such actions is not for the benefit of the estate, and the creditors, therefore, have no claim on it. The recovery constitutes a special fund for the beneficiaries under the statute.3

5

The

§ 1019. Wrongful Act, Neglect, or Default. — These words in the statutes cover negligence, and hence it is no defense that the death was unintentionally caused.' A gas company which orders its servant into a room from which the gas cannot escape, so that he suffocates, is liable to his personal representatives; but under a statute giving a right of action where death ensues from an "injury inflicted by the wrongful act of another," such action cannot be maintained against one charged only with passive neglect or a mere omission of duty. Kentucky statute allows in the case of a killing by "willful neglect" the giving of punitive damages.7 "Willful neglect" in this statute means "such conduct as evidences reckless indifference to the safety of the public, or an intentional failure to perform a plain and manifest duty in the performance of which the public has an interest." 8 It is said that "willful neglect and wanton neglect are nearly synonymous, each implying either actual malice or anti-social recklessness"; but "gross negligence" is

1 Dietrich v. Northampton, 138 Mass. 14; 52 Am. Rep. 242.

2 Gibbs v. Hannibal, 82 Mo. 143. 3 Whitford v. R. R. Co., 23 N. Y. 465; Haggerty v. R. R. Co., 31 N. J. L. 349; Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 553; Waldo v. Goodsell, 33 Conn. 432; Lyon v. R. R. Co., 7 Ohio St. 336; Andrews v. R. R. Co., 34 Conn. 57; South etc. R. R. Co. v. Sullivan, 59 Ala. 272.

5 Citizens' Gas Light etc. Co. v. O'Brien, 118 Ill. 174.

Bradbury v. Furlong, 13 R. I. 15; 43 Am. Rep. 1.

72 Ky. Rev. Stats., 510, sec. 3. 8 Jacob's Adm'r v. R. R. Co., 10 Bush, 263; Lexington v. Lewis's Adm'x, 10 Bush, 677.

9 Board of Internal Improvements v. Scearce, 2 Duvall, 576; Lexington v. Lewis's Adm'x, 10 Bush, 677.

Baker v. Bailey, 16 Barb. 54; Mere negligence of a railroad emGinn v. R. R. Co., 8 Hun, 494. ployee causing a death is not a "will

An intentional

not synonymous with "willful neglect." killing is not within the statute. "Wrongful act or omission" in a statute is synonymous with negligent act or omission; but these words do not cover the death of one who died immediately after drinking liquor sold him by one knowing his intemperate habits. Where the killing

was intentional, there can be no recovery if it was justifiable. But no presumption of wrong or malice arises from the mere act of killing, as in criminal prosecutions. In Georgia it is held that if, in resisting a battery, the assailant be willfully slain, his widow may recover damages, unless the homicide be justifiable. If it amounts either to murder or voluntary manslaughter, it is a cause of action. The aggressive conduct of the deceased, and his unlawful violence, will go in mitigation of damages."

§ 1020. Right not Enlarged by Statute-No Action if Deceased could not have Sued. The statutes give an action only when the deceased himself, if the injury had not resulted in his death, might have maintained one. In other words, it continues, for the benefit of the wife, husband, etc., a right of action which, at the common law, would have terminated at the death, and only enlarges its scope to embrace the injury resulting from the death.8

ful act or omission": Houston etc. R. R. Co. v. Baker, 57 Tex. 419.

1 Hansford v. Payne, 11 Bush, 380. 3 Spring v. Glenn, 12 Bush, 172. Jefferson etc. R. R. Co. v. Riley, 39 Ind. 568.

King v. Henkie, 80 Ala. 505; 60 Am. Rep. 119; but see, contra, McCue v. Klein, 60 Tex. 168; 48 Am. Rep. 260. As to what is justification, see Chapter LI., Assault.

Evans v. Newland, 34 Ind. 112. 7 Weekes v. Cottingham, 58 Ga. 559. Read v. R. R. Co. L. R. 3 Q. B. 555; Senior v. Ward, 1 El. & E. 385; Connor v. Paul, 12 Bush, 144; McCubbin v. Hastings, 27 La. Ann. 713; Spiva v. Coal Co., 88 Mo. 68; Holton

v. Daly, 106 Ill. 131. But the administrator of a deceased wife may sue, though if she had lived she could not have sued without joining her husband: Green v. R. R. Co., 31 Barb. 260. The administrator can bring an action for the injury under the same restrictions and on the same grounds that the party injured, if death had not ensued, might have done: Meara's Adm'r v. Holbrook, 20 Ohio St. 137; 5 Am. Rep. 633. But if the party injured, having a right of action, brings suit upon it, and dies pending the suit, as the suit thereby abates, it is no impediment to a suit by the administrator: Indianapolis etc. R. R. Co. v. Stout, 53 Ind. 143.