under the statute, the killing must be instantaneous.23 But that there can be a strictly instantaneous death has been denied. "The death may be sudden; in common language, instantaneous. But in every fatal casualty there must be a conceivable point of time, however minute, between the violence and the extinction of life. That period may be a year, or it may be less than the shortest known division of time." Such hair-splitting reminds the author of the old case of Hales v. Petit, the reasoning in which is supposed to have inspired Shakespeare's colloquy between the two clowns over Ophelia's grave,246 24a 6987. Survival Statutes.-Other States have enacted statutes under which the right of action of the injured person survives his death.. In these States the suit is to be instituted by the personal representatives of the deceased, and the damages recoverable are limited to those sustained by the deceased, leaving out of account the loss to next of kin and others by reason of the wrongful death.25 In jurisdictions where the statutes are of this type there can be no Bligh v. Biddeford &c. R. Co., 94 Me. 499; s. c. 48 Atl. Rep. 112; State V. Maine &c. R. Co., 60 Me. 490; State v. Grand Trunk R. Co., 61 Me. 114; Sawyer v. Perry, 88 Me. 42; s. c. 33 Atl. Rep. 660. Me. Pub. Laws 1891, ch. 124, affords a right of action for injuries causing death where an employé is instantly killed or dies without conscious suffering: Conley v. Portland Gaslight Co., 96 Me. 281; s. c. 52 Atl. Rep. 656. *Comstock, J., in Whitford v. Panama R. Co., 23 N. Y. 465, 486. See also, Sawyer v. Perry, 88 Me. 42; Sherman v. Western Stage Co., 24 Iowa 515; s. c. 22 Iowa 556. Whether or not the statutes of Iowa give a remedy for personal injury resulting in absolutely instantaneous death is not determined; but 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: Kellow v. Central &c. R. Co., 68 Iowa 470. 1 Plowd. 253. Hamlet, act V, scene 1. C. C. A. 188 (Indian Territory); Belding v. Black Hills &c. R. Co., 3 S. Dak. 369; s. c. 52 Am. & Eng. R. Cas. 624; 53 N. W. Rep. 750; Boyden v. Fitchburg R. Co., 70 Vt. 125; s. c. 10 Am. & Eng. R. Cas. (N. S.) 523; 39 Atl. Rep. 771; Brown v. Chicago &c. R. Co., 102 Wis. 137; s. c. 78 N. W. Rep. 771. A right of action for negligence resulting in death survives to the personal representative of deceased, if she lived after the act constituting the cause of action, though she never became conscious: St. Louis &c. R. Co. v. Dawson, 68 Ark. 1; s. c. 56 S. W. Rep. 46. Damages recoverable in an action for loss and suffering caused by personal injuries, when revived in the name of the personal representative after the death of the original plaintiff as a result of the injuries, are only such as were sustained by the person injured in his lifetime, and are recovered for the benefit of the estate, and not for the benefit of the widow or next of kin as provided by Kan. Civ. Code, § 422, where death is caused by the wrongful act or omis sion of another: Missouri &c. R. Co. v. Bennett, 5 Kan. App. 231; s. c. 14 Nat. Corp. Rep. 6; 6 Pac. Rep. 183; 7 Am. & Eng. R. Cas. (N. S.) 534. recovery for physical sufferings of the deceased where the death was instantaneous.26 § 6988. Statutes of Both Types Exist in Some States.-Statutes of both types prevail in some of the States, under which a recovery can be had for either27 or both classes of damages,28-that is to say, for damages sustained by the statutory beneficiaries of the deceased through his wrongful or untimely death; for damages sustained by the deceased; or for both. The Tennessee statute, one of the latter class, has recently been construed to allow the recovery of damages for physical and mental suffering, loss of time, etc., to the deceased in consequence of his injuries accruing up to the time of his death, and damages to compensate the widow or next of kin for the pecuniary loss sustained by them by the death of deceased, which latter damages are equivalent to a loss of earning capacity to one wholly disabled, all of which are recoverable in a single action.29 Two forms of action are provided by the laws of Michigan,-one for the injuries sustained by the deceased where he survives for a time;30 and the other for the beneficiaries where death is instantaneous.3 31 Only one remedy is open for the same injury.32 Thus, where the injured person survives for an appreciable time, the action survives to his personal representatives; and there can be no recovery for death under the statute known as the "death act."33 SECTION ARTICLE II. LOCAL NATURE OF REMEDY. SECTION 6991. Lex loci and not lex fori gov- 6994. Action will not lie where erns. 6992. Action in another State if statute is not dissimilar. 6993. Substantial similarity, not identity of statutes required. 20 Hastings Lumber Co. v. Garland, 115 Fed. Rep. 15; s. c. 52 C. C. A. 609; McVey v. Illinois Cent. R. Co., 73 Miss. 487; s. c. 3 Am. & Eng. R. Cas. (N. S.) 371; 19 South. Rep. 209; Mobile &c. R. Co. v. Watly, 69 Miss. 145. Louisville R. Co. v. Will, 23 Ky. L. Rep. 1961; s. c. 66 S. W. Rep. 628; Lewis v. Taylor Coal Co., 112 Ky. 945; s. c. 66 S. W. Rep. 1044; 23 Ky. L. Rep. 2218. 28 Lubrano v. Atlantic Mills, 19 R. I. 129; s. c. 34 L. R. A. 797; 32 Atl. Rep. 205. statutes so dissimilar as to be incapable of enforcement. 6995. Jurisdiction where injury is received upon navigable river which is the boundary between two States. 29 Davidson Benedict Co. v. Severson, 109 Tenn. 572; s. c. 72 S. W. Rep. 967. See also, Illinois &c. R. Co. v. Crudup, 63 Miss. 291. 30 Mich. Comp. Laws 1897, ch. 281, § 10117. See Kyes v. Valley Tel. Co., 132 Mich. 281; s. c. 93 N. W. Rep. 623; 9 Det. Leg. N. 609. 31 Mich. Comp. Laws 1897, ch. 288, § 10427. 32 Dolson v. Lake Shore &c. R. Co., 128 Mich. 444; s. c. 87 N. W. Rep. 629; 8 Det. Leg. N. 736. 33 Jones v. McMillan, 129 Mich. 86; S. c. 88 N. W. Rep. 206; 8 Det. Leg. SECTION 6996. Rule where foreign statute is based on theory that negligent act was criminal. 6997. Non-resident aliens as beneficiaries. SECTION 6998. Action by foreign administra tors. 6999. Jurisdiction of State courts for injuries on the seas. 7000. Admiralty jurisdiction. $6991. Lex Loci and Not Lex Fori Governs.-The law of the place of the injury controls in an action for wrongful death; and the right to recover and the amount of the recovery are governed by the ler loci and not by the lex fori.1 These statutes have no extraterritorial effect. If the death of the deceased and the act which N. 837; Oliver v. Houghton Co. &c. R. Co., 134 Mich. 367; s. c. 10 Det. Leg. N. 477; 96 N. W. Rep. 434; Storrie v: Grand Trunk Elevator Co., 134 Mich. 297; s. c. 10 Det. Leg. N. 454; 96 N. W. Rep. 569. 1Cowen v. Ray, 108 Fed. Rep. 320; s. c. 47 C. C. A. 352; Davidow v. Pennsylvania R. Co., 85 Fed. Rep. 943; Erickson v. Pacific Coast Co., 96 Fed. Rep. 80; Hamilton v. Hannibal &c. R. Co., 39 Kan. 56; s. c. 18 Pac. Rep. 57; McDonald v. McDonald, 16 Ky. L. Rep. 412; s. c. 28 S. W. Rep. 482 (no off. rep.); McGinnis v. Missouri Car &c. Co., 174 Mo. 225; s. c. 73 S. W. Rep. 586; Usher V. West Jersey R. Co., 126 Pa. St. 206; s. c. 4 L. R. A. 261; 24 W. N. C. (Pa.) 57; 46 Phila. Leg. Int. 201; 19 Pitts. L. J. (N. S.) 401; 17 Wash. L. Rep. 330; 17 Atl. Rep. 597; McMaster v. Illinois Cent. R. Co., 65 Miss. 264; s. c. 7 Am. St. Rep. 653; 4 South. Rep. 59; Kiefer v. Grand Trunk R. Co., 12 App. Div. (N. Y.) 28; s. c. 42 N. Y. Supp. 171; 26 Civ. Proc. Rep. (N. Y.) 147; Thorpe v. Union Pac. Coal Co., 24 Utah 475; 8. c. 68 Pac. Rep. 143; Northern Pac. R. Co. v. Babcock, 154 U. S. 190; s. c. 38 L. ed. 958; 14 Sup. Ct. Rep. 978. The right of action of a citizen of the United States who has shipped on board an English vessel, to recover for injuries received by him while still in the port of London, must be governed by English law: The Egyptian Monarch, 36 Fed. Rep. 773. A right of action given by a statute of another State for death by negligence within three years from the death, not barred by the limitation of two years imposed upon a like action by the statute of the State in which the action is brought: Theroux v. Northern &c. R. Co., 64 Fed. Rep. 84; s. c. 12 C. C. A. 52. The right to recover interest in an action for wrongful death, where the cause of action arises under the laws of a foreign State, rests exclusively on its laws; and where, according to such laws, it was discretionary with the jury whether to allow interest or not, and it did not appear that the jury in such an action had added interest, it was error for the clerk, following the practice prescribed by the law of the State in which the action was brought (N. Y. Code Civ. Proc., § 1904), to add interest to the verdict and include it in the judgment: Frounfelker v. Delaware &c. R. Co., 73 App. Div. (N. Y.) 350; s. c. 76 N. Y. Supp. 745. A widow cannot maintain an action in her own name for the death of her husband in another State, under a statute of the foreign State which expressly directs the action to be brought by the administrator. though for the ultimate benefit of the widow and next of kin, although a closely similar statute in the State where the action is brought gives the right to sue in such a case expressly and exclusively to the widow, if there be one, for the benefit of herself and children: Usher v. West Jersey R. Co., 126 Pa. St. 206; s. c. 4 L. R. A. 261; 24 W. N. C. (Pa.) 57; 46 Phila. Leg. Int. 201: 19 Pitts. L. J. (N. S.) 401; 17 Wash. L. Rep. 330; 17 Atl. Rep. 597. * Marshall v. Wabash R. Co., 46 Fed. Rep. 269; De Ham v. Mexican &c. R. Co. (Tex. Civ. App.), 22 S. W. Rep. 249 (no off. rep.); Armstrong v. Beadle, 5 Sawy. (U. S.) 484; Metcalfe v. The Alaska, 130 U. S. 201; s. c. 32 L. ed. 923; 9 Sup. Ct. Rep. 461. caused it occurred beyond the territorial limits of the State where the suit is brought, an action for wrongful death will not lie under the statute of that State, whether such act and death took place in another State or upon the high seas. It does not alter the case in this respect that both parties were citizens of the State where suit is brought; or that the wrong-doer was a corporation chartered by that State; or that the injury was occasioned by negligence which was a breach of a contract entered into in that State; or that the corporation whose wrongful act inflicted the injury was chartered both in the State where the death occurred and in the State where the suit was brought; or that the person injured was brought into the State before his death, and there died. In Illinois, it is held that, as corporations are local to the State which creates them, the right of action against them must be local to the same State, however it may be as to individuals." In Massachusetts, it has been held that an action for the death of a person in another State cannot be maintained in Massachusetts where the remedy sought is not in conformity with the laws or practice of the Commonwealth, and which did not exist at common law ;10 and that an indictment against a common carrier for the loss, by his negligence, of the life of a passenger, must allege that administration has been taken out in that State.1 11 § 6992. Action in Another State if Statute is Not Dissimilar.—An action for death caused in the State where the statute has provided a Vaughn v. Bunker Hill &c. Min. Co., 126 Fed. Rep. 895; Stewart v. Baltimore &c. R. Co., 6 App. Cas. (D. C.) 56; s. c. 23 Wash. L. Rep. 247; Beach v. Bay State &c. Co., 10 Abb. Pr. (N. Y.) 71; s. c. 30 Barb. (N. Y.) 433; rev'g s. c. 27 Barb. (N. Y.) 248; 6 Abb. Pr. (N. Y.) 415; Vandeventer v. New York &c. R. Co., 27 Barb. (N. Y.) 244; Vanderwerken v. New York &c. R. Co., 6 Abb. Pr. (N. Y.) 239; Whitford v. Panama R. Co., 3 Bosw. (N. Y.) 67; s. c. aff'd, 23 N. Y. 465; Campbell v. Rogers, 2 Handy (Ohio) 110; Hover v. Pennsylvania Co., 25 Ohio St. 667; Derr v. Lehigh Valley R. Co., 158 Pa. St. 365; s. c. 33 W. N. C. (Pa.) 295; 27 Atl. Rep. 1002; Nashville &c. R. Co. v. Eakin, 6 Coldw. (Tenn.) 582; Needham v. Grand Trunk R. Co., 38 Vt. 294. See also, Hagan v. Kean, 3 Dill. (U. S.) 124. Mahler v. Norwich &c. Transp. Co., 45 Barb. (N. Y.) 226; s. c. aff'd, 35 N. Y. 352. Whitford v. Panama R. Co., 23 N. Y. 465; aff'g s. c. 3 Bosw. (N. Y.) 67; Crowley v. Panama R. Co., 30 Barb. (N. Y.) 99. • Whitford v. Panama R. Co., 23 N. Y. 465; aff'g s. c. 3 Bosw. (N. Y.) 67; Crowley v. Panama R. Co., 30 Barb. (N. Y.) 99. 'State v. Pittsburg &c. R. Co., 45 Md. 41; Belt v. Gulf &c. R. Co., 4 Tex. Civ. App. 231; s. c. 22 S. W. Rep. 1062. But see Berry v. Montgomery &c. R. Co., 39 Ga. 554. 8 Van Doren v. Pennsylvania R. Co., 93 Fed. Rep. 260; s. c. 35 C. C. A. 282; De Harn v. Mexican Nat. R. Co., 86 Tex. 68; s. c. 7 Nat. Corp. Rep. 350; 23 S. W. Rep. 381; Needham v. Grand Trunk R. Co., 38 Vt. 294. Illinois &c. R. Co. v. Cragin, 71 Ill. 177. See Baltimore &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431. 10 Richardson v. New York &c. R. Co., 98 Mass. 85. See also, Woodard v. Michigan &c. R. Co., 10 Ohio St. 121. 11 Commonwealth v. Sanford, 12 Gray (Mass.) 174. right of action therefor, can be maintained in any State in which the common-law obstacle has been removed if the statute of the place where the cause of action arose is not inconsistent with the statute or public policy of the State in which the right of action is to be enforced. In Ohio, the right to sue for a death occasioned in a sister State is governed by a statute which authorizes such an action only where the laws of the sister State allow the enforcement in its courts of the statutes of Ohio of like character.13 This act was held to be an obstacle to a suit in that State by an administrator of a railroad employé to recover for a wrongful death occurring from the negligence of the company in Indiana, where the Indiana Employer's "St. Louis &c. R. Co. v. Haist, 71 Ark. 258; s. c. 72 S. W. Rep. 893; Burrell v. Fleming, 109 Fed. Rep. 489; s. c. 47 C. C. A. 598; Davidow v. Pennsylvania R. Co., 85 Fed. Rep. 943; Fleming v. Burrell, 109 Fed. Rep. 489; s. c. 47 C. C. A. 598; Law v. Western R. Co., 91 Fed. Rep. 817; Smith v. Empire State &c. Min. Co., 127 Fed. Rep. 462; Van Doren v. Pennsylvania R. Co., 93 Fed. Rep. 260; s. c. 35 C. C. A. 282; Selma &c. R. Co. v. Lacey, 43 Ga. 461; Western &c. R. Co. v. Strong, 52 Ga. 461: Cincinnati &c. R. Co. v. McMullen, 117 Ind. 439; s. c. 20 N. E. Rep. 287; Nicholas v. Burlington &c. R. Co., 78 Minn. 43; s. c. 80 N. W. Rep. 776; Boyle v. Southern R. Co., 36 Misc. (N. Y.) 289; s. c. 73 N. Y. Supp. 465; Cavanagh v. Ocean Steam Nav. Co., 19 Civ. Proc. Rep. (N. Y.) 391; s. c. 13 N. Y. Supp. 540; Curney v. Grand Trunk R. Co., 59 Hun (N. Y.) 625; s. c. 37 N. Y. St. Rep. 557; 13 N. Y. Supp. 645 (complaint need not allege that statutes are alike, but need merely allege that they are of similar import and character); Stallknecht v. Pennsylvania R. Co., 53 How. Pr. (N. Y.) 305; Usher v. West Jersey R. Co., 126 Pa. St. 206; s. c. 4 L. R. A. 261; 24 W. N. C. (Pa.) 57; 46 Phila. Leg. Int. 201; 19 Pittsb. L. J. (N. S.) 401; 17 Wash. L. Rep. 330; 17 Atl. Rep. 597; Utah Savings &c. Co. v. Diamond Coal &c. Co., 26 Utah 299; s. c. 73 Pac. Rep. 524; Rudiger v. Chicago &c. R. Co., 94 Wis. 191; 6 Am. & Eng. R. Cas. (N. S.) 50; 68 N. W. Rep. 661; Dennick v. Railroad Co., 103 U. S. 11; Stewart v. Baltimore &c. R. Co., 168 U. S. 445; s. c. 42 L. ed. 537; 25 Wash. L. Rep. 814; 3 Va. L. Reg. 645; 18 Sup. Ct. Rep. 105. See contra, McCarty v. Chicago &c. R. Co., 18 Kan. 46. Pub. St. Mass. 1882, ch. 112, § 212, punishes railroad corporations by fine of from $500 to $5,000 for negligence causing death, to be recovered by indictment for the benefit of the widow and children and next of kin of decedent. It does not, however, expressly provide how the punishment shall be determined between the two extremes. It further provides that they shall also be equally liable in damages, assessed with reference to the degree of culpability, to be recovered in an action of tort by the decedent's executor or administrator for the use of the same persons specified in case of indictment, but that only one remedy is to be available for the same cause. It was held that the statute, while in form penal, was not strictly so, and the civil remedy in the alternative must be regarded as remedial in an international sense, authorizing action to be brought thereunder in the Federal courts or the courts of another State: Boston &c. R. Co. v. Hurd, 108 Fed. Rep. 116; s. c. 47 C. C. A. 615. The laws of Mexico giving a right of action to recover damages for a wrongful death occurring in that country are not contrary to the public policy of Texas, nor to natural justice or good morals, nor is their enforcement in that State calculated to injure the State or its citizens, and an action to enforce the right so given may be maintained therein in a State or Federal court having jurisdiction of the parties, in which the established forms of procedure are such that substantial justice can be done between the parties: Mexican Nat. R. Co. v. Slater, 115 Fed. Rep. 593. 13 Rev. St. Ohio, § 6134a. |