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.

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.

V.

Memphis &c. Packet Co. Pikey, 142 Ind. 304; s. c. 40 N. E.

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; McMillan v. Spider Lake Sawmill &c. Co., 115 Wis. 332; s. c. 91 N. W.

generally accepted view has in mind that the purpose of these statutes 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, upon 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.

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appointed in the State where the injury resulting in the death was received $1

§ 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.3 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.3

34

§ 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.

Bigelow v. Nickerson, 70 Fed.

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.

S7 Wis. Stat. 1898, § 4255.

39 Railway Co. v. Whitton, 13 Wall.

vessel for the death of a person, caused by the negligence of the officers of such vessel.99

SECTION

7004. In general.

ARTICLE III. THE WRONGFUL ACT.

7005. Willful negligence.

7006. Death must have been proximate consequence of negligent act.

SECTION

7007. What if the act amounts to a felony.

7008. Further of felonious killing. 7009. Not necessary that defendant should be guilty of murder in the first degree.

§7004. In General.-It is no defense that the "wrongful act, neglect, or default" that caused the death was unintentional.1 In Georgia, it is held that if, in resisting a battery, the assailant be willfully slain, his widow may recover damages, unless the homicide is 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. So, in an action. for damages for killing a slave, the defendant could give evidence of the slave's character for turbulence and insubordination for the purpose of aiding his defense,-that the slave was killed in an act of insubordination, and also for the purpose of mitigating the dam

ages.

to

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$7005. Willful Negligence.-Under a statute of Kentucky, providing that "if the life of any person or persons is lost or destroyed by the willful neglect of another person, then the widow, heir, or personal representative of the deceased shall have the right sue such person ** and recover punitive damages for the loss or destruction of the life aforesaid," the term "willful neglect" has been defined "to be 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." And it is held that "willful neglect and wanton

(U. S.) 270. But see Whitton v. Chicago &c. R. Co., 25 Wis. 424. See also, Baltimore &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431.

"The City of Brussels, 6 Ben. (U. S.) 370. See actions for same injury: Ryall v. Kennedy, 8 Jones & Sp. (N. Y.) 347. See also, Plummer V. Webb, Ware (U. S.) 75; Boutiller V. Milwaukee, 8 Minn. 97; The Glendale, 77 Fed. Rep. 906; Glaholm v. Barker, L. R. 1 Ch. App. 223; s. c.

neglect are nearly synonymous, each implying either actual maliceor anti-social recklessness"; but "gross negligence" is not synonymous with "willful neglect." Therefore, as it is the duty of a turnpike company to have bridges wherever the safety or convenience of travel requires, and so to construct and preserve them as to secure travellers against the incidental accidents to which the ordinary use of them may expose them, willful neglect of this duty means a knowledge by the company of the insufficiency of its bridge for that end, and a voluntary failure to remedy the defect. A palpable and perilous defect, discoverable by ordinary vigilance, might authorize the presumption of such knowledge and neglect. And in a caseunder the statute, where an action was brought against the city of Lexington for damages for the death of the plaintiff's intestate,. caused by the blasting done in constructing a cistern for the city, and where is was averred that the parties engaged in the prosecution of the work "acted so recklessly, carelessly, and wantonly, and with such indifference to the rights of others, and especially her son, that one of the stones, so thrown up by said blasting with gunpowder, was thrown with such force against said lad that he was instantly killed by it," the court says: "All this may have resulted from a very slight want of care and prudence; the words 'wanton," 'reckless,' and 'careless,' taken singly or collectively, arenot the equivalent of 'willful.' To authorize a recovery under this act, it is essential that the loss of life shall have been the result of willful neglect; and as the statute is highly penal in its nature, a petition under it, to be good, must charge the exact characterof neglect for which a recovery may be had; and while it is not indispensable that the exact language of the statute shall be used, it is absolutely necessary that the charge shall be made in language clearly importing as high a degree of negligence as that for which the lawmaking power intended the penalty to be imposed." In another case1o under the same statute, it appeared that the defendant wrongfully presented a loaded pistol in a room where many persons were present, and while he held it in his hand it was discharged, the load striking and killing the plaintiff's husband. The person killed was not the one with whom the defendant was quarrelling, nor the person whom he intended to injure. The court held the defendant liable, saying that "the act of drawing a loaded pistol, with the intention of

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6 Board of Internal Improvements v. Scearce, 2 Duv. (Ky.) 576; Lexington v. Lewis, 10 Bush (Ky.) 677. 7 Hansford V. Payne, 11 Bush (Ky.) 380.

8

* Board of Internal Improvements v. Scearce, 2 Duv. (Ky.) 576. "Lexington v. Lewis, 10 Bush (Ky.) 677.

10 Chiles v. Drake, 2 Metc. (Ky.)

146.