using it, in a room where there were many persons together, manifests such an utter disregard of the consequences which might result from the use of the weapon as leaves the party without any excuse for his conduct. The killing, although not intentional, was the result of perfect recklessness, and, as such, rendered the defendant liable for the civil injury which was produced by his willful negligence." The Indiana statute11 provides that an 'action may be maintained "where the death of one is caused by the wrongful act or omission of another." It has been decided that the words "wrongful act or omission" used in the statute mean the same as negligent act or omission.12

7006. Death must have been Proximate Consequence of Negligent Act.-The condition that there may be a recovery by representatives only where the deceased could have maintained the action if death had not ensued, prevents a recovery where the injury causing the death was not the natural and proximate consequence of the acts of negligence proved. Where the proximate cause of the wrongful death is the defendant's negligence, it is immaterial that the negligence of some third person may have contributed to the accident.1 So, there

13

"Burns' Ind. Rev. Stat. 1901, sey, 1 Heisk. (Tenn.) 235. The $285. maxim, In pari delicto, potior est Jeffersonville &c. R. Co. v. Riley, conditio defendentis et possidentis, 39 Ind. 568, 587.

Merrihew v. Chicago R. Co., 92 Ill. App. 346; Sherman v. Western Stage Co., 24 Iowa 515; Martinez v. Bernhard, 106 La. 368; s. c. 30 South. Rep. 901; 55 L. R. A. 671; Nickerson v. Harriman, 38 Me. 277; Baltimore &c. R. Co. v. Trainor, 33 Md. 542; State v. Fox, 79 Md. 514; &c. 24 L. R. A. 679; 29 Atl. Rep. 601 seller with knowledge liable for death of one purchasing a glandered horse); Daniels v. New York &c. R. Co., 183 Mass. 393; s. c. 67 N. E. Rep. 424; McLean v. Burbank, 11 Minn. 277; Southern R. Co. v. Miller Miss.), 30 South. Rep. 68; Ginna v. Second Ave. R. Co., 8 Hun (N. Y.) 494; s. c. aff'd, 67 N. Y. 596; Hoey Metropolitan St. R. Co., 36 Misc. (N. Y.) 93; s. c. 72 N. Y. Supp. 544; &c. modified, 74 N. Y. Supp. 1113; Koch v. Zimmermann, 85 App. Div. (N. Y.) 370; s. c. 83 N. Y. Supp. 339; Sauter v. New York &c. R. Co., 66 N. Y. 50; Tait v. Buffalo R. Co., 55 App. Div. (N. Y.) 507; s. c. 67 N. Y. Supp. 403; McCafferty v. Pennsylvania R. Co., 193 Pa. St. 339; s. c. 44 Atl. Rep. 435; Wagner v. Wool

applies equally to actions brought under these statutes as in other cases. Therefore it has been held, where the defendant, a railroad company, was engaged in carrying Confederate troops, and the husband of plaintiff, a Confederate soldier, was killed on the cars of the defendant, while engaged in the service of the Confederate Government, that the plaintiff could not recover damages sustained by reason of the death: Martin v. Wallace, 40 Ga. 52. The voluntary, willful act of suicide of an insane person, whose insanity was caused by a railroad accident, and who knows the purpose and physical effect of his act, is a new cause, so that his death is not by reason of the negligence of the railroad company, within Mass. Pub. St. 1882, ch. 112, § 213, in such case giving a right of action therefor: Daniels v. New York &c. R. Co., 183 Mass. 393; s. c. 67 N. E. Rep. 424. See Tucker v. State, 89 Md. 471. See also, Wallace v. Cannon, 38 Ga. 199; s. c. sub nom. Cannon v. Rowland, 34 Ga. 422; 35 Ga. 105.

14 See Vol. I, § 75; Neal v. Wil

may be a recovery if the cause of a death was a disease, but the disease was accelerated and death hastened by the negligence of the defendant.15 Where death is attributed to two or more concurrent causes, each must be a prominent efficient cause; for, if one of the alleged causes operates slightly with another, which is the prominent efficient cause, then the proximate cause of death should be traced to the latter.16 The common-law presumption in prosecutions for murder, appeals of death, and inquisitions against deodands, that an injury was not the proximate cause of the death when the death did. not occur within a year and a day after the injury was inflicted, does not apply to actions for wrongful death.17

§ 7007. What if the Act Amounts to a Felony.-The old maxim that a trespass is merged in a felony has sometimes been supposed to mean that there is no redress at common law by civil action for an injury which amounts to a felony. While this may have been the case in the earlier state of the law, more recently, and prior to Lord Campbell's Act,-which, as to deaths, changed the law in this respect, after the defendant was convicted of the felony he was liable to a civil suit by the party injured.18 He was also liable after acquittal, unless it were obtained per fraudem.19 But where it ap peared that a felony had been committed, it was well settled that at common law the sufferer could not maintain a civil suit against the offender till he had been tried for the felony.20 But the rule as to the

mington &c. R. Co., 3 Pen. (Del.) 467; s. c. 53 Atl. Rep. 338; Beaucamp v. Saginaw Min. Co., 50 Mich. 163; s. c. 45 Am. Rep. 30; Nagel v. Missouri Pac. R. Co., 75 Mo. 653.

15 Meekins v. Norfolk &c. R. Co., 134 N. C. 217; s. c. 46 S. E. Rep. 493. 16 Ellyson v. International &c. R. Co., Tex. Civ. App.; s. c. 75 S. W. Rep. 868.

17 Western &c. R. Co. v. Bass, 104 Ga. 390; s. c. 30 S. E. Rep. 874; Purcell v. Lauer, 14 App. Div. (N. Y.) 33; s. c. 43 N. Y. Supp. 988; Schlichting v. Wintgen, 25 Hun (N. Y.) 626; Louisville &c. R. Co. v. Clarke, 152 U. S. 230; s. c. 38 L. ed. 422; 14 Sup. Ct. Rep. 579.

18 Markham v. Cob, Latch 144; Lutterell v. Reynell, 1 Mod. 282; 'Dawkes v. Coveneigh, Style 346.

19 Crosby v. Leng, 12 East 409. 20 Cooper v. Witham, 1 Sid. 375; s. c. 1 Lev. 247. Under a former statute of Georgia, it was, provided that, in order to recover damages for an injury committed to the per

son, "if the injury amounts to a felony, * * * the person injured must either simultaneously, or concurrently, or previously, prosecute for the same, or allege a good excuse for the failure so to prosecute": Ga. Code 1873, § 2970. See Western &c. R. Co. v. Sawtell, 65 Ga. 235. So, it was held that, where an action for the injury complained of was brought by a father against a street-railway company for killing his male child, aged two years, by means of the carelessness and negligence of the agents of the company in the management of one of its cars, without blame or fault of the child, as the tort complained of was prima facie a felony, the plaintiff should have alleged in his declaration that he had prosecuted the agent of the defendant on the criminal side of the court, or alleged a good excuse for not doing so: Allen v. Atlanta St. R. Co., 54 Ga. 503. See also, Chick v. South Western R.. Co., 57 Ga. 357.

may

right of action being suspended by the felony was not applicable, except between the party injured and the criminal himself.21 It was therefore held, in a case where an action for damages was brought against a defendant for the negligence of his servant, by which the daughter of the plaintiff was killed, that a plea that the acts complained of amounted to a felonious act, and that the person committing them had not been prosecuted, was bad.22 It has also been held that, as the doctrine of merger of the civil remedy in the public crime, at common law, was based upon the feudal system, by which the commission of a felony by the tenant worked a forfeiture of the whole of the feudatory's interest in the grant, as well as his goods and chattels, and as we have no forfeitures in this country, an action be maintained for the private wrong, although the act which is the foundation of the suit amounts to a felony.23 In New York, it is provided by statute that "the right of action of any person injured by any felony shall not, in any case, be merged in such felony, or be in any manner affected thereby." Therefore, it was held that an action brought by the representatives of a deceased person for damages sustained by reason of his death, caused by the felonious act. of another, was not prematurely brought before the defendant had been tried on a criminal prosecution.25 A Texas statute provides that an action for actual damages on account of injuries causing the death of any person may be brought when it is caused by the wrongful act or negligence of another, although not caused under such circumstances as amount in law to a felony, and without regard to any criminal proceedings that may or may not be had in relation to the homicide, and evidence in regard to any action that may have been taken by plaintiff or the grand jury in connection with criminal proceedings is held to be inadmissible.27

26

$7008. Further of Felonious Killing.-In cases of involuntary manslaughter in the performance of a lawful act, where the necessary discretion and caution have not been observed, it has been held in Georgia that, as these are cases which do not amount to felonies, the private injuries are not merged in the public wrong, nor sus

White v. Spettigue, 13 Mee. & W. 602.

Osborn v. Gillett, L. R. 8 Exch. 88; s. c. 42 L. J. (Exch.) 53. See also, Wells v. Abrahams, L. R. 7 Q. B. 554. "Plummer v. Webb, Ware (U. S.) 75. See also, Williams v. Hendricks, Ky. Dec. 203; Lofton v. Vogles, 17 Ind. 105.

*N. Y. Code Civ. Proc., § 1899.

There is also a similar statute in
Kentucky: Carroll Ky. Stat. 1899,
§ 1127. See Eden v. Lexington &c.
R. Co., 14 B. Mon. (Ky.) 204.

25 Wise v. Teerpenning (N. Y.), 8 N. Y. Leg. Obs. 153.

26 Sayle's Tex. Rev. Civ. St., arts. 3017, 3020.

27 Croft v. Smith (Tex. Civ. App.), 51 S. W. Rep. 1089.

pended until the public has been avenged;28 and as it was held that the killing of a slave was not at common law a felony,20 an action for damages caused by his death might be brought without first prosecuting his slayer criminally.30 It is held in Alabama that, as the statute31 providing that a wrongful act causing death may be sued for by the representative also provides that the action must be brought "within one year" after the death, it precludes an application of the common-law doctrine of merger. If the suit could not be brought until the termination of a criminal prosecution, the statute would in most instances perfect a bar to the action before the law permitted the party to bring suit; for it is a well-known fact that trials of homicide are seldom terminated within a year, and the absurdity would exist of a statute of limitations running against an action before the party had a right to commence it.32

§ 7009. Not Necessary that Defendant should be Guilty of Murder in the First Degree. The right of a widow to recover for the death of her husband "caused by the wrongful act of another," is not dependent upon the defendant's guilt of murder in the first degree.33

SECTION

ARTICLE IV. WHEN ACTION TO BE COMMENCED.

7012. Statute

of limitations Accrual of action.

7013. Further of accrual of actionRule in Tennessee and Ohio. 7014. Accrual of action under Missouri statute.

$7012.

SECTION

7015. When action deemed commenced.

7016. Extension of statutes limiting time for commencement of action-Infancy.

7017. Amendment of pleadings after statute has run.

Statute of Limitations-Accrual of Action.-The statutes generally provide that the action must be brought within a certain time; and where the right is thus limited, an action cannot be maintained after the expiration of the statutory period, unless provision is made for an extension under special circumstances.1 A law in

28 Shields v. Yonge, 15 Ga. 349. 2 But see contra, State v. Jones, Walk. (Miss.) 83.

30 Williams v. Fambro, 30 Ga. 232; Neal v. Farmer, 9 Ga. 555; Fields v. State, 1 Yerg. (Tenn.) 156.

31 Ala. Code 1852, § 1938 (Ala. Rev. Code 1867, § 2297).

32 Lankford v. Barrett, 29 Ala. 700. Vawter v. Hultz, 112 Mo. 633; s. c. 20 S. W. Rep. 689; 32 Am. L. Reg. 229.

1 Chiles v. Drake, 2 Metc. (Ky.) 146; Poff v. New England Teleph. &c. Co., 72 N. H. 164; s. c. 55 Atl. Rep. 891; Taylor v. Cranberry &c. Coal Co., 94 N. C. 525; Stoltz v. Baltimore &c. R. Co., 7 Ohio Dec. 514; Staeffler v. Menasha Wooden Ware Co., 111 Wis. 483; s. c. 87 N. W. Rep. 480; Stern v. La Compagnie Generale Transatlantique, 110 Fed. Rep. 996; Williams v. Quebec S. S. Co., 126 Fed. Rep. 591.

Connecticut limits the time to "within one year after the cause of action shall have arisen." Under the statute, the action must be brought by the executor or administrator of the deceased. In an action under it for the death of a person, which occurred more than one year before suit was brought, the action having been instituted, however, within one year after the appointment of the administrator, it was held "that a cause of action, accruing to an administrator after the death of the intestate, is not complete, and does not arise and exist so that the Statute of Limitations can begin to run upon it, until an administrator is appointed who can bring suit," and that therefore the suit was not barred. But if the statute has once begun to run in the lifetime of the party entitled, it is not interrupted by his subsequent death, but continues, and the cause of action survives, not accrues, to the personal representative. Thus, where the plaintiff's intestate was thrown from a boat capsized in crossing a swollen stream in the line of route, by reason of the negligence of the defendants, who were common carriers operating a line of stagecoaches, and, after some ten minutes of struggling to save herself, was drowned, it was held that the death came within what is generally and legally understood as an instantaneous death, and that the interval of time between the injury and death was so brief that the statute did not begin to run in the lifetime of the deceased, nor until the appointment of an administrator. The view that the statute runs from the appointment of the administrator has been adopted in Iowa and some other of the States. In most States the action is made to accrue at the time of the death, and not at the time the injury was received.

5

$7013. Further of Accrual of Action-Rule in Tennessee and Ohio.-In Tennessee, however, "the action may be instituted by the personal representative of the deceased; but if he decline it, the

'Conn. Gen. Stat. 1866, p. 202, $544, 546. This statute held not to be retroactive: Commonwealth v. Boston &c. R. Co., 11 Cush. (Mass.) 512. 'Andrews v. Hartford &c. R. Co., 34 Conn. 57. 'Sherman v. Western Stage Co., v. New England Teleph. &c. Co., 72 24 Iowa 515; s. c. 22 Iowa 556.

• Nestelle v. Southern &c. R. Co., 56 Fed. Rep. 261; Western &c. R. Co. v. Bass, 104 Ga. 390; s. c. 30 S. E. Rep. 874; Hanna v. Jeffersonville &c. R. Co., 32 Ind. 113; Chesapeake &c. R. Co. v. Kelley, 20 Ky. L. Rep. 1238; s. c. 48 S. W. Rep. 993; Poff

Sherman v. Western Stage Co., 24 Iowa 515; s. c. 22 Iowa 556; Louisville &c. R. Co. v. Sanders, 86 Ky. 259; s. c. 5 S. W. Rep. 563; Barnes v. Brooklyn, 22 App. Div. (N. Y.) 520; s. c. 48 N. Y. St. Rep.

36.

N. H. 164; s. c. 55 Atl. Rep. 891; Bonnell v. Jewett, 24 Hun (N. Y.) 524; Dailey v. New York &c. R. Co., 26 Misc. (N. Y.) 539; s. c. 57 N. Y. Supp. 485; Hoover v. Chesapeake &c. R. Co., 46 W. Va. 268; s. c. 33 S. E. Rep. 224.