jury to the right of support, that remedy is exclusive, and hence, notwithstanding death may result from the intoxication, an action for wrongful death cannot be maintained under these statutes.69 Then, as the statutes provide for the maintenance of the action which the deceased might have maintained had he lived, it is apparent that no such action as the last mentioned could be sustained.70 The wrongful act must be such an act of which the deceased himself, had he lived, might have complained."1

$470. Rule of Construction of Statutes.-There is conflict among the decisions with reference to the proper rule of construction of the statutes creating the action for death by wrongful act. As has been previously stated, there was no right of action at common law for the death of a human being, by the wrongful or negligent act of another.72 That being so, it must follow that these statutes are in derogation of the common law, and if we are to follow the ordinary rule of statutory construction, they must be strictly construed, and this is the position taken in many decisions.73 Other courts hold that the stat

69

King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119; Davis v. Justice, 31 Ohio St. 359, 27 Am. Rep. 514 (where deceased was killed by cars while drunk). See Kirchner v. Myers, 35 Ohio St. 85, 35 Am. Rep. 598; Barrett v. Dolan, 130 Mass. 366, 39 Am. Rep. 456. 70 See Nielson v. Brown, 13 R. I. 651, 43 Am. Rep. 58.

71 Spiva v. Osage Coal etc. Co., 88 Mo. 68.

72 Ante, sec. 468.

See interesting note giving the older authorities in 48 Am. Dec. 619-641; Carey v. Berkshire R. R. Co., 1 Cush. 475, 48 Am. Dec. 616.

73 Lexington v. Lewis, 10 Bush, 677; Kramer v. Market St. R. 25 Cal. 534; McDonald v. Pittsburgh etc. Ry. Co., 144 Ind.

R. Co.,

459, 55

Am. St. Rep. 185, 43 N. E. 447; Deni v. Penn. R. R. Co., 181 Pa. St. 525, 59 Am. St. Rep. 676, 37 Atl. 558; Thornburg v. American Strawboard Co., 141 Ind. 443, 50 Am. St. Rep. 334, 40 N. E. 1062; Pittsburg etc. Ry. Co. v. Hine, 25 Ohio St. 629; HamilJones, 125 Ind. 176, 25 N. E. 192; Jackson v. Railway Co., 87 Mo. 422, 56 Am. Rep. 460; Daly v. Stoddard, 66 Ga. 145.

ton v.

utes are purely remedial in their nature, and therefore are to be liberally interpreted so as to advance the remedy.

74

Without regard to the question as to whether or not the statutes are remedial in their nature, we certainly must conclude that in most instances where questions arise as to the existence of the beneficiaries named in the statute, the courts apply a strict construction, and the expression that one seeking to recover under a statute for the death of a human being must bring himself clearly within the terms of the statute is frequently used.75 In doing this the courts have in all instances applied a rule of strict construction. "In creating or giving the right by this act, it was within the power of the legislature to impose upon it such restrictions as were thought fit; and if restrictions were imposed, they must be referred to the newly created right itself, if the restrictive language used will warrant it; for the act, being in derogation of the common law, any restrictive language used in it must be construed against the right created by it. It would be different if the act was merely remedial as to existing rights; such statutes are to be liberally construed." 76

§ 471. Who may Sue. The statutes of each state should be consulted to ascertain in whose name the action may be brought. Upon the question as to who

74 Lamphear v. Buckingham, 33 Conn. 237; Haggerty v. Railway Co., 31 N. J. L. 349; Merkle v. Bennington, 58 Mich. 156, 55 Am. Rep. 666, 24 N. W. 776; Bolinger v. St. Paul etc. Ry. Co., 36 Minn. 418, 1 Am. St. Rep. 680, 31 N. W. 856; Wabash etc. Ry. Co. v. Skacklett, 10 Ill. App. 404; Beach v. Steamboat Co., 16 How. Pr. 1; Soule v. New York etc. R. Co., 24 Conn. 575.

75 McDonald v. Pittsburgh etc. Ry. Co., 144 Ind. 459, 55 Am. St. Rep. 185, 43 N. E. 447.

76 Pittsburgh etc. Ry. Co. v. Hine, 25 Ohio St. 629. See excellent discussion in note to 70 Am. St. Rep. 675.

the

the

pur

for

In

ot

in

may sue, and as to the existence of the beneficiaries, the strict terms of the statutes must govern, and therefore it will be useless to attempt to give the purport of the statutes of all the states. Actions for wrongful death, being statutory, can only be maintained in the name of the person in whom the right of action is vested by the statutes." And no action will lie for an injury caused by the death of a human being other than is provided in the statutes.78 In the majority of states, the suit is to be brought in the name of the personal representative, while in others, persons are named in addition to the personal representative who may bring the action, and in still other states, only the beneficiaries may sue.

§ 472. Beneficiaries-Who Are.-The beneficiaries in the action are variously designated. In a number of states they are designated as the "surviving husband. wife, children and parents," 79 while the statutes of other states omit parents, and use in lieu thereof "next of kin." so Some use "husband or widow or heirs." "81 In Mississippi and New Hampshire parents are not mentioned. Other states use the words "widow and next of kin." 82 "Surviving

77 Usher v. West Jersey R. R. Co., 126 Pa. St. 206, 17 Atl. 597, 12 Am. St. Rep. 863, and note.

78

Grosso v. Delaware etc. R. R. Co., 50 N. J. L. 317, 13 Atl. 233; Myers v. Holborn, 58 N. J. L. 193, 55 Am. St. Rep. 606, 33 Atl.

389.

79 Arizona, Maryland, Pennsylvania, Rhode Island, South Carolina, Texas, Virginia; Tiffany on Death by Wrongful Act. secs. 80

et seq., 90 et seq.

80 Mississippi, Kansas, New Hampshire, New York, Ohio; Tiffany on Death by Wrongful Act, secs. 80 et seq., 90 et seq.

81 Connecticut; Tiffany on Death by Wrongful Act, secs. 80 et seq., 90 et seq.

Kansas

82 Arkansas, Illinois, Indiana (and "children or next of kin"), (and "children or next of kin"), Maine (for "widow”), Massachusetts (and "children"), Minnesota, Montana, Nebraska,

85

husband, wife, children and parents," "next of kin," "husband or widow or heirs," "widow and next of kin," are the words to be construed or defined to determine who may be beneficiaries. "Children" will include a child born after the father's death.83 In some cases a distinction is made with respect to the ages of the children, it being considered that the aim of the statute was to afford a remedy only to the children dependent upon the parent for support.84 But if the statute merely uses the term "children," it would seem that adult children could recover as well as minors, and this is the general holding. A mother is not embraced within the meaning of "widow or children, husband or father." 86 To enable a mother to recover for the death of her adult son, the burden is upon her to show the family relationship to maintain such action.87 Where the statute gives the right to the "widow," the right to maintain it is not taken away by the subsequent marriage;ss nor is the wife prevented from maintaining the action by the fact that she had been living separate and apart from her husband.89. "Heir or heirs" are construed to include or mean "child or children," and not to embrace all those entitled to share in the estate of a person dy.

New Jersey, Oklahoma, Tennessee (“"widow"), Vermont; Tiffany on Death by Wrongful Act, secs. 80 et seq., 90 et seq.

83 Nelson v. Galveston etc. Ry. Co., 78 Tex. 621, 22 Am. St. Rep. 81, 14 S. W. 1021.

84 Mott v. Central R. R., 70 Ga. 680, 48 Am. Rep. 595; St. Louis Ry. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104.

85 Lockwood v. New York etc. R. R. Co., 98 N. Y. 523; Baltimore etc. R. R. Co. v. State, 60 Md. 449; Tuteur v. Chicago etc. R. R. Co., 77 Wis. 505, 46 N. W. 897; Schnats v. Philadelphia R. R. Co., 160 Pa. St. 602, 28 Atl. 952; Atlanta R. R. Co. v. Venable, 65 Ga. 55. 86 Amos v. Mobile R. R. Co., 63 Miss. 509.

87 Deni v. Pennsylvania R. R. Co., 181 Pa. St. 525, 59 Am. St. Rep. 676, 37 Atl. 558.

88 Georgia R. R. Co. v. Garr, 57 Ga. 277, 24 Am. Rep. 297.

89 Dallas etc. Ry. Co. v. Spicker, 61 Tex. 427, 48 Am. Rep. 297.

ing intestate. The right of action is limited to lineal descendants.90 The word "heirs" has even been construed to include widow and children, but not parents or collateral relatives.91 A widower is not embraced within "widow or next of kin," and hence cannot sue for the death of his wife.92 "Next of kin" has been considered to include the widower of a deceased woman,

93 though in other jurisdictions it is considered to embrace only blood relations, not husband and wife as such.94 The phrase "next of kin” includes such persons as are entitled to inherit the personal estate of the deceased; a husband not being such, he is not a next of kin.95 No recovery can be had for injuries to a child before it is born, as the imputed existence of an unborn child as a fiction is not now recognized.9

96

It must be remembered that "personal representative" does not mean the heir, parent, child or husband, but the administrator or executor.97 Nor is a widow a personal representative.98 A stepfather

90 Redfield v. Oakland etc. Ry. Co., 110 Cal. 277, 42 Pac. 822; Hindry v. Holt, 24 Colo. 464, 65 Am. St. Rep. 235, 51 Pac. 1002; Jordan v. Cincinnati R. R. Co., 89 Ky. 40, 11 S. W. 1013; Pennsylvania R. Co. v. Malia, 20 Ky. Law Rep. 1623, 49 S. W. 809.

91 Noble v. Seattle, 19 Wash. 133, 52 Pac. 1013.

92 Drake v. Gilmore, 52 N. Y. 389; Western Union Tel. Co. v. McGill, 57 Fed. 699.

93 Steel v. Kurtz, 28 Ohio St. 191.

94 Haraden v. Larrabee, 113 Mass. 430; Dickens v. New York Cent. R. R. Co., 23 N. Y. 158; Drake v. Gilmore, 52 N. Y. 389; Telegraph Co. v. McGill, 57 Fed. 699.

95 Warren v. Englehart, 13 Neb. 283, 13 N. W. 401.

96 Gorman v. Budlong (R. I.), 49 Atl. 704; Dietrich v. Northampton, 138 Mass. 145, 52 Am. Rep. 422; Hawkins v. Front St. R. R. Co., 3 Wash. 592, 28 Am. St. Rep. 72, 28 Pac. 1021.

97 Kramer v. Market St. Ry. Co., 25 Cal. 434; Illinois Cent. R. R. Co. v. Hunter, 70 Miss. 471, 35 Am. St. Rep. 651, 12 South. 482. 98 Litchfield Coal Co. v. Taylor, 81 Ill. 590; Usher v. West Jersey Ry. Co., 126 Pa. St. 206, 12 Am. St. Rep. 863, 17 Atl. 597.