Liability Act1 provides that where a citizen of Indiana in the employ of a railroad corporation extending into another State is injured in such other State, and a suit for the injury shall be brought in Indiana, it shall not be competent for the corporation to prove the statutes or decisions of the State where the injury was occasioned as a defense to the action. 15

$6993. Substantial Similarity, Not Identity of Statutes Required. -All that is necessary to sustain the action is that there should be substantial similarity between the law of the State where the action. is instituted and that of the State where the injury was received.1o It is not regarded as a substantial dissimilarity that the laws governing the time for the commencement of the action in the two States should differ;17 or that the laws of one State should give the right of action to the personal representative of the deceased and the laws of the other State should give that right to the beneficiaries;18 or that the statutes should differ as to the amount of the recovery;' .19 or that the statutes of the two States relative to the distribution of the damages should be unlike.2o So, an action by the next of kin given by the statute of a foreign State is enforceable in New York for a death occurring in the foreign State, where the statute of the foreign State and the New York statute are alike except that the former allows a recovery for pain and suffering of the deceased.21 And so, an action for death caused by negligence in Maryland, where the statute provides for an action in the name of the State as nominal plaintiff, but for the benefit of certain prescribed heirs, is not such a special remedy for a purely statutory right of action as will prevent the maintenance of an action by the administrator in the District of Columbia, where the statute of the District of Columbia provides for actions for personal representatives in such case for the 14 Burns' Rev. Stat. Ind. 1901, Ky. L. Rep. 579; s. c. 20 S. W. Rep. § 7086. 819 (no off. rep.).

15 See Wabash R. Co. v. Fox, 64 Ohio St. 133; s. c. 59 N. E. Rep. 888.

16 Cavanagh v. Ocean Steam Nav. Co., 19 Civ. Proc. Rep. (N. Y.) 391; s. c. 13 N. Y. Supp. 540; Harrill v. South Carolina &c. R. Co., 132 N. C. 655; s. c. 44 S. E. Rep. 109.

17 Weaver v. Baltimore &c. R. Co., 21 D. C. 499; s. c. 21 Wash. L. Rep. 179.

18 Wooden v. Western &c. R. Co., 126 N. Y. 10; s. c. 9 Rail. & Corp. L. J. 369; 36 N. Y. St. Rep. 387; 26 N. E. Rep. 1050; aff'g s. c. 35 N. Y. St. Rep. 685; 12 N. Y. Supp. 908; Wintuska v. Louisville &c. R. Co., 14

Wooden v. Western &c. R. Co., 126 N. Y. 10; s. c. 9 Rail. & Corp. L. J. 369; 36 N. Y. St. Rep. 387; 26 N. E. Rep. 1050; aff'g s. c. 35 N. Y. St. Rep. 685; 12 N. Y. Supp. 908 (in such a case the law of the forum will govern and limit the amount of the recovery). But see Oates v. Union Pac. R. Co., 104 Mo. 514; s. c. 16 S. W. Rep. 487.

20 Dennick v. Railroad Co., 103 U. S. 11; Florida Cent. &c. R. Co. v. Sullivan, 120 Fed. Rep. 799; s. c. 57 C. C. A. 167; 61 L. R. A. 410.

21

"Boyle v. Southern R. Co., 36 Misc. (N. Y.) 289; s. c. 73 N. Y. Supp. 465.

benefit of certain prescribed heirs, although the beneficiaries may not be exactly the same under the two statutes.22

§ 6994. Action Will Not Lie where Statutes so Dissimilar as to be Incapable of Enforcement.-Courts will refuse to take jurisdiction of the action where there is such dissimilarity between the statutes that the State whose jurisdiction is invoked cannot enforce the law of the State where the injury from which the death resulted was received, 23 This doctrine is illustrated by a case where an action was brought in Texas for the death of one whose injuries were received in Mexico. The Texas statute, as construed by the courts of that State, allows damages where the person killed stood in the relation of husband, wife, or parent to the beneficiary, the amount to be fixed by the jury in the exercise of their own knowledge, experience, and sense of justice, and the right to such damages is not affected by the remarriage of the surviving wife or husband. Under the laws of Mexico liability is limited to the furnishing of a continuing support to the legal dependents of the deceased during the time such support would have been due from the deceased, in amounts proportioned to his ability to give the support and the necessities of those entitled to receive it, which questions are to be determined by the judge. The recovery under the laws of that country is in the nature of alimony or a pension awarded by the court to each beneficiary, payable in monthly installments, which cease, in the case of wives

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.

*Belt v. Gulf &c. R. Co., 4 Tex. Civ. App. 231; s. c. 22 S. W. Rep. 1062. By the common law of Connecticut an action for personal injuries does not survive to the administrator of the person injured, and there is no statute in that State by virtue of which a common-law action for personal injuries is revived or made to survive to an administrator of the person injured. The fact that defendant railroad company was incorporated in both States, and that deceased was a citizen of Massachusetts, cannot effect liability for an accident occurring in Connecticut, where the action is brought in Massachusetts: Davis v. New York &c. R. Co., 143 Mass. 301; s. c. 3 N. E. Rep. 408. 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 had 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 to enforce the statute of the other: St. Louis &c. R. Co. v. McCormick, 71 Tex. 660; s. c. 9 S. W. Rep. 540; 1 L. R. A. 804.

or daughters, upon marriage, and in the case of sons on their attaining majority. In this case it was held that the right of recovery given by the Mexican laws, at least where the wife and daughters of the deceased are beneficiaries, is so dissimilar to the laws of Texas as to be incapable of enforcement through any procedure provided by the statutes of Texas or by the common law. 24 Again there is this dissimilarity preventing action under the laws of a sister State, where the statute of the State in which the injuries were received is penal in its nature, and the laws of the State whose jurisdiction is invoked contains no penal features. 25

§ 6995. Jurisdiction where Injury is Received upon Navigable River which is the Boundary Between Two States.-Where an accident takes place to a vessel plying a river which constitutes the boundary line between two States, an injured passenger, or, if he is killed, his personal representative, may bring an action against the carrier in either State. The jurisdiction is concurrent, and it is immaterial upon which side of the stream the boat may have been at the time of the accident.20

§ 6996. Rule where Foreign Statute is Based on Theory that Neglient Act is Criminal.-The statute of Mexico giving a civil right of action to recover damages for wrongful death through negligence, although it bases such right of action on the fact that the defendant's negligent acts or omissions constitute crimes, does not for that reason belong to the class of criminal laws which can be enforced only in the courts of the country where the offense was committed.27

§ 6997. Non-Resident Aliens as Beneficiaries.-The doctrine that legislative enactments have no extra-territorial force has moved some strong courts to take the position that a statute giving a right of action for wrongful death does not operate in favor of a non-resident alien unless the statute so expressly provides.28 The better and more

24 Mexican Nat. R. Co. v. Slater, Rep. 527; Opsahl v. Judd, 30 Minn. 115 Fed. Rep. 593. 126; s. c. 14 N. W. Rep. 575.

25 Dale v. Atchison &c. R. Co., 57 Kan. 601; s. c. 47 Pac. Rep. 521; 14 Nat. Corp. Rep. 34; Matheson v. Kansas City &c. R. Co., 61 Kan. 667; s. c. 60 Pac. Rep. 747; O'Reilley v. New York &c. R. Co., 16 R. I. 388; s. c. 29 Cent. L. J. 210; 17 Atl. Rep. 906; Adams v. Fitchburg R. Co., 67 Vt. 76; s. c. 30 Atl. Rep. 687.

27 Mexican Nat. R. Co. v. Slater, 115 Fed. Rep. 593.

28 Brannigan v. Union Gold-Min. Co., 93 Fed. Rep. 164; s. c. 2 Denv. Leg. Adv. 353; Deni v. Pennsylvania R. Co., 181 Pa. St. 525; s. c. 40 W. N. C. (Pa.) 281; 28 Pitts. L. J. (N. S.) 31; 37 Atl. Rep. 558; aff'g s. c. 6 Pa. Dist. Rep. 15; 19 Pa. Co. Ct. 7; 20 Memphis &c. Packet Co. V. McMillan v. Spider Lake Sawmill Pikey, 142 Ind. 304; s. c. 40 N. E. &c. Co., 115 Wis. 332; s. c. 91 N. W.

generally accepted view has in mind that the purpose of these stat-utes was to supply a defect in the common law and provide a remedy for the reparation of a wrong. The courts that adopt this view hold that the doctrine of territorial limitation of statutes cannot be availed of to permit persons responsible for the loss of human lives. by their negligence to escape the consequences on the ground that the beneficiaries live outside the boundaries of the State or country where the fatal injury was inflicted, where the statute, general in its designation of beneficiaries, contains no hint of a discrimination against non-resident beneficiaries. In this latter view legislative power is territorial and restricted thereto only so far as it imposes duties on persons outside its jurisdiction, and not where benefits are conferred by its enactments.29

$6998. Action by Foreign Administrators.-In most jurisdictions there is no obstacle to the bringing of the action by an administrator appointed by a foreign court.30 But letters granted to an administrator in a foreign jurisdiction without proof of any assets in such jurisdiction, will not defeat the right of action of an administrator

Rep. 979; Adam v. British &c. Co., [1898] 2 Q. B. 430; s. c. 67 L. J. Q. B. (N. S.) 844.

*Luke v. Calhoun Co., 52 Ala. 118; Bonthron v. Phoenix Light &c. Co., Ariz. —; s. c. 71 Pac. Rep. 941; 61 L. R. A. 563; Szymanski v. Blumenthal, 3 Pen. (Del.) 558; s. c. 52 Atl. Rep. 347; Vetaloro v. Perkins, 101 Fed. Rep. 393; Mulhall v. Fallon, 176 Mass. 266; s. c. 57 N. E. Rep. 386; Renlund v. Commodore Min. Co., 89 Minn. 41; s. c. 93 N. W. Rep. 1057. See generally, Brown v. Louisville &c. R. Co., 97 Ky. 228; s. c. 17 Ky. L. Rep. 145; 30 S. W. Rep. 639; Philpott v. Missouri &c. R. Co., 85 Mo. 164; Chesapeake &c. R. Co. v. Higgins, 85 Tenn. 620; s. c. 4 S. W. Rep. 47. The right of action given by Ga. Act No. 27, 1887, to a mother for the killing of her son, apon whom she is dependent in whole or in part for support, is not confined to residents of the State, but belongs alike to all mothers in like circumstances, wheresoever they may reside: Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406.

*Erickson v. Pacific Coast S. S. Co., 96 Fed. Rep. 80; McCarty v. New York &c. R. Co., 62 Fed. Rep. 437: Wilson v. Tootle, 55 Fed. Rep.

211; Fabel v. Cleveland &c. R. Co., 30 Ind. App. 268; s. c. 65 N. E. Rep. 929; Memphis &c. Packet Co. v. Pikey, 142 Ind. 304; s. c. 40 N. E. Rep. 527; Missouri Pac. R. Co. v. Lewis, 24 Neb. 848; s. c. 40 N. W. Rep. 401; 2 L. R. A. 67. Under Rev. St. Ohio, § 6133, which authorizes an executor or administrator duly appointed in another State to maintain an action in the courts of Ohio in his official capacity, "in like manner and under like restrictions as a non-resident may be permitted to sue," and section 6134a, which provides that a right of action for wrongful death accruing under the laws of another State may be enforced in Ohio "in all cases where such other State, * * allows the enforcement in its courts of the statute of this State of like character," an administrator appointed in Indiana, where his decedent was killed, and who is given by the Indiana statute a right of action for the death in his official capacity, may maintain an action thereon in Ohio: Cincinnati &c. R. Co. v. Thiebaud, 114 Fed. Rep. 918; s. c. 52 C. C. A. 538. But see Maysville St. R. &c. Co. v. Marvin, 59 Fed. Rep. 91; s. c. 8 C. C. A. 21.

appointed in the State where the injury resulting in the death was received.81

$6999. Jurisdiction of State Courts for Injuries on the Seas.A State statute creating liability for death applies to a vessel by whose negligence a death is occasioned within three miles of the shore of the State, in the absence of an act of Congress conferring such jurisdiction on the Federal Court under the commerce clause of the Constitution.32 So, an action for the death of one falling overboard from a British steamer in a bay less than two miles from the shore of the United States of Columbia, is governed by the laws of the latter country, and not by those of Great Britain, since the maritime territory of every State extends to the bays and the ports of the sea enclosed by headlands, as well as the distance of a maritime league from the coast.33 Where the fatal injuries were received on the high seas, the action may be prosecuted in the courts of the State of the registry of the vessel.84

§ 7000. Admiralty Jurisdiction.-Statutes such as we are considering, although applicable to marine torts, do not infringe the jurisdiction of the Federal courts; nor do they infringe the commercial power of Congress.35 The Federal courts of admiralty may enforce these State statutes;86 and where a statute giving an action for the death of a person, caused by a wrongful act, also provides "that such action shall be brought for a death caused in this State, and in some court established by the Constitution and laws of the same," it does not prevent the removal of the action to the Federal court and maintaining it there by a non-resident plaintiff, under the act of Congress of March 2, 1867.38 An action may be brought in rem against a

31 Pisano v. Shanley, 66 N. J. L. 1; Rep. 113; s. c. 17 C. C. A. 1; 34 U. S. s. c. 48 Atl. Rep. 618.

32 The Printer, 73 Fed. Rep. 239; s. c. 44 U. S. App. 434; 19 C. C. A. 481; Lennan v. Hamburg-American S. S. Co., 73 App. Div. (N. Y.) 357; s. c. 77 N. Y. Supp. 60.

33 Geoghegan v. Atlas &c. S. S. Co., 3 Misc. (N. Y.) 224; s. c. 51 N. Y. St. Rep. 868; 22 N. Y. Supp. 749.

34 McDonald v. Mallory, 77 N. Y. 546; s. c. 7 Abb. N. C. (N. Y.) 84; International Nav. Co. v. Lindstrom, 123 Fed. Rep. 475; rev'g s. c. 117 Fed. Rep. 170.

35 Steamboat Co. v. Chase, 16 Wall. (U. S.) 522; Sherlock v. Alling, 93 U. S. 99; aff'g s. c. 44 Ind. 184.

App. 261; 30 L. R. A. 336; The City of Norwalk, 55 Fed. Rep. 98; The Printer, 44 U. S. App. 434; s. c. 19 C. C. A. 481; The Job T. Wilson, 84 Fed. Rep. 204; The Oregon, 14 Sawy. (U. S.) 442; s. c. 45 Fed. Rep. 62; Grimsley v. Hankins, 46 Fed. Rep. 400; The Transfer No. 4, 61 Fed. Rep. 364; The Willamette, 31 L. R. A. 715; s. c. 44 U. S. App. 26; 18 C. C. A. 366; 70 Fed. Rep. 874; s. c. modified on rehearing, 31 L. R. A. 720; 44 U. S. App. 96; 18 C. C. A. 373; 72 Fed. Rep. 79; Re Humboldt Lumber Manufacturers' Assn., 60 Fed. Rep. 428.

ST Wis. Stat. 1898. § 4255.

35 Railway Co. v. Whitton, 13 Wall.