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second ground for reasons stated in this opinion, with leave to the plaintiff to amend by asserting the facts in regard to the kindred as named in the act, if so advised.

Whether exemplary damages may be given in every case, or are to be confined to those in which they would have been allowed before the passage of the act, is a question upon which I intimate no opinion. See Myers v. San Francisco, 42 Cal., 215.

The demurrer is sustained, as stated, with leave to plaintiff to amend on or before the rule day in July, and defendant to plead on or before the rule day in August next.

SCHEFFER V. RAILROAD COMPANY.

(15 Otto, 249–252. 1881.)

Error to U. S. Circuit Court, Eastern District of Virginia.
Opinion by MR. JUSTICE MILLER.

STATEMENT OF Facts.- The plaintiffs, executors of Charles Scheffer, deceased, brought this action to recover of the Washington City, Virginia Midland & Great Southern Railroad Company damages for his death, which they allege resulted from the negligence of the company while carrying him on its road. The defendant's demurrer to their declaration was sustained, and to reverse the judgment rendered thereon they sued out this writ of error.

The statute of Virginia, under which the action was brought, is, as to the question raised on the demurrer, identical with those of all the other states, giving the right of recovery when the death is caused by such default or neglect as would have entitled the party injured to recover damages if death had not ensued.

$ 144. Where the negligence of the defendant is the remote, not the proximate, cause of the death of the plaintiff's testator, such defendant is not responsible in damages under the Virginia statute.

The declaration, after alleging the carelessness of the officers of the company, by which a collision occurred between the train on which Scheffer was and another train, on the 7th day of December, 1874, proceeds as follows:

Whereby said sleeping-car was rent, broken, torn and shattered, and by means whereof the said Charles Scheffer was cut, bruised, maimed and disfigured, wounded, lamed and injured about his head, face, neck, back and spine, and by reason whereof the said Charles Scheffer became and was sick, sore, Jame and disordered in mind and body, and in his brain and spine, and by means whereof phantasms, illusions and forebodings of unendurable evils to come upon him, the said Charles Scheffer, were produced and caused upon the brain and mind of him, the said Charles Scheffer, which disease, so produced as aforesaid, baffled all medical skill, and continued constantly to disturb, harass, annoy and prostrate the nervous system of him, the said Charles Scheffer, to wit, from the 7th day of December, A. D. 1874, to the 8th day of August, 1875, when said phantasms, illusions and forebodings, produced as aforesaid, overcame and prostrated all his reasoning powers, and induced him, the said Charles Scheffer, to take his life in an effort to avoid said phantasms, illusions and forebodings, which he then and there did, whereby and by means of the carelessness, unskilful and negligent acts of the said defendant aforesaid, the said Charles Scheffer, to wit, on the 8th day of August, 1875, lost his life and died, leaving him surviving a wife and children.”

The circuit court sustained the demurrer on the ground that the death of Scheffer was not due to the negligence of the company in the judicial sense which made it liable under the statute. That the relation of such negligence was too remote as a cause of the death to justify recovery, the proximate cause being the suicide of the decedent,- his death by his own immediate act. In this opinion we concur.

Two cases are cited by counsel, decided in this court, on the subject of the remote and proximate causes of acts where the liability of the party sued depends on whether the act is held to be the one or the other; and, though relied on by plaintiffs, we think they both sustain the judgment of the circuit court.

The first of these is Insurance Company v. Tweed, 7 Wall., 44.

In that case a policy of fire insurance contained the usual clause of exception from liability for any loss which might occur “by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake or hurricane."

An explosion took place in the Marshall warehouse, which threw down the walls of the Alabama warehouse,- the one insured, situated across the street from Marshall warehouse,— and by this means, and by the sparks from the Eagle Mill, also fired by the explosion, facilitated by the direction of the wind, the Alabama warehouse was burned. This court held that the explosion was the proximate cause of the loss of the Alabama warehouse, because the fire extended at once from the Marshall warehouse, where the explosion occurred. The court said that no new or intervening cause occurred between the explosion and the burning of the Alabama warehouse. That if a new force or power had intervened, sufficient of itself to stand as the cause of the misfortune, the other must be considered as too remote.

This case went to the verge of the sound doctrine in holding the explosion to be the proximate cause of the loss of the Alabama warehouse; but it rested on the ground that no other proximate cause was found.

In Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U. S., 469 (SS 304-17, infra), the sparks from a steam ferry-boat had, through the negligence of its owner, the defendant, set fire to an elevator. The sparks from the elevator had set fire to the plaintiff's saw-mill and lumber-yard, which were from three to four hundred feet from the elevator. The court was requested to charge the jury that the injury sustained by the plaintiff was too remote from the negligence to afford a ground for a recovery.

Instead of this, the court submitted to the jury to find “whether the burning of the mill and the lumbor was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which under the circumstances would not naturally follow from the burning of the elerator, and whether it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonably to be expected.”

This court affirmed the ruling, and in commenting on the difficulty of ascertaining, in each case, the line between the proximate and the remote causes of a wrong for which a remedy is sought, said: “It is admitted that the rule is difficult. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” To the same effect is the language of the court in McDonald v. Snelling, 14 Allen (Mass.), 290.

Bringing the case before us to the test of these principles it presents no difficulty. The proximate cause of the death of Scheffer was his own act of selfdestruction. It was within the rule in both these cases a new cause, and a sufficient cause of death.

The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months' disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that “great first cause least understood,” in which the train of all causation ends.

The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train.

His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him and his death.

Judgment affirmed.

$ 145. Statute necessary to recovery.- A father brought action to recover damages for the death of his minor son killed by alleged negligence while in the employment of defendant company at $2 per day. He sued to recover wages at that rate during the minority of the deceased — about four years. There was no statute providing for such a case. Held, that the plaintiff could not recover. Sullivan v. Union, etc., R’y Co.,* 1 McC., 301; 2 Fed. R., 447.

$ 146. Such statute constitutional.— A state statute giving damages for the negligent killing of a human being is not in conflict with that provision of the federal constitution conferring upon congress the power to regulate interstate commerce, even though such statute applies to the killing of a person on a vessel navigating an interstate water-way - the killing being within the jurisdiction of the state. Sherlock v. Alling, 3 Otto, 99.

$ 147. Death on high seas Statute inapplicable.— It was alleged that the plaintiff and his wife took passage upon the steamer Eastport, owned by the defendants, at Empire City, Oregon, for San Francisco. On the voyage the steamer struck a rock and settled down into the water. The plaintiffs entered a surf-boat by direction of the master. Plaintiff's wife was precipitated into the sea and drowned. Action was brought under section 377 of the Code of Civil Procedure of California, which provides that, “ when the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.” The answer admits, but alleges that while the steamship was proceeding on her voyage and on the high seas the steamship was, by the perils of the sea, forced upon a rock, whereby the ship was wrecked and the death of plaintiff's wife occurred without knowledge of defendant. Other facts were alleged designed to bring the case within the provisions of section 4283 of the Revised Statutes of the United States. Held, on demurrer, that, as the death occurred upon the high seas, beyond the legislative jurisdiction of the state, the statute was inapplicable, and the plaintiff could not recover. Armstrong v. Beadle, * 5 Saw., 484; 8 Rep., 35.

$ 148. Suit in state other than the one giving cause of action.— An action for negligently killing a person, though statutory, is transitory, and is enforceable in any court acquiring jurisdiction by proper service of process. Hence a New York administrator may sue in New York for damages for the death of his intestate in New Jersey, the action being conferred by the New Jersey law. Dennick v. Railroad Co., 13 Otto, 16.

$ 149. Quære, whether an action for damages, authorized by state statute, would be maintainable in a state other than that in which the cause of action arose. Hagen v. Kean, * 3 Dill., 124.

$ 150. The plaintiff's intestate, a resident of the city of New York, came to her death in Jersey City, New Jersey, through the negligence of the defendant company. The plaintiff was granted letters of administration upon her estate by the surrogate of New York county. A New Jersey statute provided that wboever should negligently cause the death of another

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should be liable to an action for damages, to be brought by the personal representative of the deceased, and the amount recovered to be for the benefit of the widow and next of kin, etc. The plaintiff brought suit against the defendant under this statute. The defendant moved to dismiss the complaint, because the plaintiff and administratrix in the state of New York had Do power or authority, by virtue of the statute of New Jersey, to sue for and recover damages for the death of the intestate. Held, that the statutes of another state cannot impart to a New York administrator powers which the New York statutes do not confer. He is the creation of the local law, and, until additional authority is derived by virtue of an additional appointment, he has only the power which the local law confers. The court say: “ The right which the plaintiff is supposed to have received by the statute of New Jersey is not a right to any property which are the assets of the deceased or her estate, but is a right to sue as trustee of a fund which may be obtained for the next of kin - - a position in which she is not placed by the law under which she was appointed. In order to execute such a trust the trusteeship must have been conferred, and the only title which the plaintiff has acquired to this trusteeship is by virtue of her appointment as administratrix by the surrogate under the laws of New York. Its laws do not confer upon the representatives of deceased persons any power to obtain damages for injuries resulting in death which the deceased received in another state." (Citing Richardson v. N. Y. Central R. Co., 98 Mass., 85; Woodward v. Michigan Southern R. Co., 10 Ohio St., 121.) Mackay, Adm'x, v. Ceutral R. Co., * 4 Fed. R., 617.

$ 151. In admiralty.- The widow and son of a hand killed on a steamboat by the negligence of the engineer may recover therefor against the owners of the vessel. The Highland Light, Chase's Dec., 150.

$ 152. Where a vessel injures a woman so as to cause her death her husband may in admi. ralty recover against the vessel damages for the injury thereby done to him. Sea Gull, Chase's Dec., 145.

$ 153. Libel by the administrator of a child poisoned by the carelessness of officers of the vessel. Claimants excepted to the libel. Held, per Blatchford, J.: “I think that the libel is one for breach of contract, and that the cause of action survived to the administrator, and may be sued for in rem, in like manner as if the deceased had sustained an injury short of death through the negligence of those in charge of the vessel, and in breach of the contract of carriage, and had sued in rem therefor. (Chamberlain v. Chandier, 3 Mason, 242; Crapo v. Allen, 1 Spr., 184; Steamboat New World v. King, 16 How., 469; The Washington, 9 Wall., 513; The Aberfoyle, 1 Blatch. C. C., 360; The Pacific, id., 569.) The breach is alleged to bave occurred during the running of the contract, and before the running of the voyage. The exceptions to the libel are disallowed.” The City of Brussels, 6 Ben., 370.

$ 154. The United States district court, sitting in admiralty, has jurisdiction of an action begun by a wife to recover damages for the negligent killing of her husband, who was employed on the vessel when killed. Coggans v. Helmsley, * 23 Int. Rev. Rec., 384.

S 155. A district court of the United States, sitting in admiralty, will not be prohibited from acting upon a libel for damages against a vessel for negligently killing several seamen in a collision, and the court may estimate the damages sustained by the killing. Ex parte Gordon, 14 Otto, 515; Ex parte Ferry Company, id., 519.

$ 156. A man fell into the Willamet river, Oregon, and was drowned by the negligence of those in charge of the ferry-boat on which he was riding. Held, that an action for negligently causing his death could not be maintained in the federal court sitting in admiralty. Holmes v. Oregon, etc., R. Co., 5 Fed. R., 75, 523. S. P., In re Long Island, etc., Co., 5 Fed. R., 599. could not maintain an action in her own name, even though she was the beneficiary of the sum which the personal representative might recover. Hagen v. Kean,* 3 Dill., 124.

$ 157. Although by the common law, and apparently also by the civil law, no action will lie to recover damages for the death of a human being, in admiralty, a libel by a father to recover damages for the loss of the services of his minor son, killed in a collision, will be sustained. The Garland, * 20 Am. Law Reg. (N. S.), 742; 16 West. Jur., 35. $ 158.

suit by administrator.- Where a statute confers upon an administrator the right to recover for the loss of life occasioned by the wrongful act, neglect or default of another, if such loss of life is occasioned by a collision upon navigable waters the administrator may proceed in admiralty by libel in rem.

Ibid. $ 159. When must be brought by administrator.— By the statute of Illinois the personal representative of one whose death is caused by the wrongful act of another is given a right of action. In a petition of a widow for pecuniary compensation for the wrongful death of her husband, it was averred that deceased had died without children or next of kin, and that she was his widow and personal representative. Held, that the words “personal representative," properly construed, mean “the executor or administrator.” (Citing Chicago v. Mayor, 18 III., 349; Boutiller v. S. P. Milwaukee, 8 Minn., 97; Western, etc., R. Co. v. Strong, Sup. Ct. Georgia, 1874; Woodward v. Michigan, etc., R. Co., 10 Ohio St., 121; Whitford v. Panama R. Co., 23 N. Y., 465.) And that, as plaintiff does not allege that she had taken out letters of administration, thereby becoming the executor or administrator of her deceased husband, she

$ 160. For minor shipped as whaler.- If a minor leave the service of bis father and proceed to a strange port, where, representing himself as of full age, he is shipped by the defendants for a whaling voyage, during which he perishes, the father cannot maintain an action for the loss of his services and society unless the defendants, when they shipped him, knew that he was a minor. Cutting v. Seabury, 1 Spr., 522.

$ 161. Action by insurance company against murderer of policy-holder.- An insurance company obliged to pay the amount of a policy on the life of A., who was murdered by B., has no cause of action against B. for his illegal and tortious act whereby the company were compelled to pay the policy. Insurance Co. v. Brame, 5 Otto, 754; Mobile Ins. Co. v. Brame, 17 Alb. L. J., 84; 10 Ch. L. N., 411 (SS 128–30).

$ 162. By the common law, actions for injuries to the person abate by death, and the code of Louisiana, which gives an action in favor of the minor children and widow of the deceased, and, in default of these relatives, in favor of the surviving father and mother, cannot include an insurance company desirous of maintaining a suit for damages against the murderer of a person whose life was insured in such company. Ibid.

$ 163. Under Tennessee statute.- An action was brought against a contractor for damages sustained by the widow and children of a person killed while on the pilot or bumper of a locomotive. The claim was founded on sections 1166 and 1167 of the code of Tennessee. Held, that the sections of the code touching the liability which railroad companies incur by failing to observe certain precautions in running their trains did not apply to contractors engaged in constructing a railroad. The jury is properly instructed to find for the defendant where, if the verdict should be against him, the court should set it aside and grant a new trial. Griggs v. Houston,* 14 Otto, 553.

§ 164. Recovery for expenses, etc., no bar to action for death.— The fact that the plaintiff had recovered, in a previous action, damages for the loss of the services of a boy who was killed, and for what expenses had been incurred, and for loss of time of plaintiff and wife, by reason of the accident, did not preclude recovering in a second suit for damages from loss of prospective benefits which might have been derived by the continuance in life of the boy. Barley v. Chicago & A. R. R. Co.,* 4 Biss., 430.

$ 165. Damages — Averments.- Where a statute giving an action for the negligent kill. ing of a human being proceeds upon the theory that if the person had lived he would have added so much to his personal estate, which the law would have given on his death intestate to his widow and next of kin, and that the person or company negligently killing such person must reimburse the widow and next of kin for what they have lost, held, that the damages are largely discretionary with the jury, and it need not appear that the widow or next of kin, claiming damages, had a right to receive support from the deceased. Railroad Co. v. Barron,* 5 Wall., 90.

8 166. At common law no action lay for causing death of a person. But in 1853 the legis. lature of Illinois passed an act giving a right of action wherever death is caused by the wrong. ful act of a person or corporation, where, if death had not ensued, the person injured would have had the right to sue. The action must be brought by the personal representatives of the deceased, and the amount recovered shall be for the exclusive benefit of the widow and next of kiv, to whom the jury may give such damages, not exceeding $5,000, as they shall deem a fair and just compensation for the pecuniary injuries resulting from such death to the wife and next of kin. But in a suit by the next of kin they are not required to aver in their declaration the specific nature of the pecuniary damages which they have suffered by reason of the killing of the deceased. Barron v. Illinois Central R. Co.,* 1 Biss., 412.

S 167. The Texas statute of 1860 relating to actions for the death of a person is not repealed by section 30 of the Texas constitution of 1869 — the former giving compensatory damages merely, while the latter relates to exemplary damages. Gohen v. Texas Pac. R. Co.,* 2 Woods, 346.

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