had lived and brought it; and in addition to permit the jury to consider the pecuniary loss to the kindred. This is further manifest from the fact that, if there are none of the kindred named in the act, there may still be a recovery and the amount will become general assets.

It is evident that in those states in which the statute was construed to limit the measure of damages to the pecuniary loss of kindred, making that the only basis of a recovery, there was no escape from requiring an allegation that kindred were left, and the amount of damages suffered by them.

"We consider, upon the whole," say the court in Safford v. Drew, 3 Duer, 640, "that the only ground upon which the action can rest is the ground upon which the damages are to be recovered; that the prescription of the one ground or rule of damage has excluded every other, and thus rendered it indispensable, in order to support a suit under the statute, that pecuniary loss has resulted to the widow and next of kin." This same construction applied to the statute before me would, so far as the kindred named in the act are concerned, limit the recovery to the pecuniary injury they had sustained. But is it not evident that this would be saying that an added incident was the principal and only thing?

In my judgment the New York court could never have used the language quoted if it had been construing the statute of Nevada. It could never have said that the pecuniary loss to the wife and next of kin constituted the sole cause of action - the sole ground upon which the jury could base a verdict. What I have said indicates the result reached upon this point.

Whatever the jury "may take into consideration" must be stated in the complaint, for there cannot, properly, be any proof or any deliberation by the jury upon a cause of action not stated. It is not, however, in my opinion, indispensable to the plaintiff's complaint that it should state, as a ground of recovery, the pecuniary injury to the kindred. The complaint as it stands is sufficient, in that it contains, in this particular, allegations touching the injury to the deceased upon which the plaintiff can recover.

$142. Under the Nevada "damages for death" act if damages to kindred be proved there must be a corresponding allegation in the pleadings.

But if it is a fact that there are kindred of the degrees named in the act, and that they have sustained some pecuniary injury by the death, and if the plaintiff proposes to offer proof of those facts, they must be alleged.

The argument upon the part of the plaintiff, however, seems to have proceeded upon the theory that, because the amount of any recovery might become general assets under the statute, proof might be given of these facts without an averment to support it. This, I think, cannot be done without violating the old and just principle that the allegations and the proof must correspond.

Upon this point I have consulted Blake v. The Midland R'y Co., 10 Law & Eq., 437; The City of Chicago v. Major, 18 Ill., 349; Chicago & Rock Island R. R. Co. v. Morris, 26 id., 400; Conant et al. v. Griffin, 48 id., 410; Railroad Co. v. Miller, 2 Col., 465; Safford v. Drew, 3 Duer, 627; 9 and 10 Vict., ch. 93, p. 693; Statutes of California, 1862, p. 447; St. Ind. 1862, sec. 584; Code Iowa, secs. 2525, 2526; Comp. Laws Mich., p. 1881 (1872); Rev. St. of Ky., vol. 1, p. 223.

§ 143. Under the Nevada "damages for death" act it is immaterial whether the death be immediate or consequential.

The more important point remains to be considered. It is alleged in the complaint that death was the immediate result of the injury received.

The argument is that, when death is the immediate or instantaneous result of an injury, there is no space of time for a right of action to accrue to the injured party, and that none can therefore survive to the personal representative. On the other hand, it is contended that this statute gives, and was intended to give, a new right of action, and does not continue any old right which the injured person had. The argument in support of the demurrer assumes that the action which the personal representative brings is the same to be measured by the same rule of damages as if the deceased had commenced an action and had died during its continuance. It also assumes that there is such a thing as instantaneous death resulting from an injury to the person.

The only case cited to sustain the point is Kearney v. Railroad Co., 9 Cush., 108. That case was decided upon a statute of Massachusetts passed in 1842, as follows: "The action of trespass on the case for damage to the person shall hereafter survive, so that, in the event of the death of any person entitled to bring such action or liable thereto, the same may be prosecuted or defended by or against his executor or administrator in the same manner as if he were living.

And the construction placed upon this act was that "the case contemplated by the statute must be of such a nature that the party injured must himself have, at some time, had a cause of action," and, because the injured person was said to be instantly killed, the court said he never had a cause of action to survive.

But under the Nevada statute it is not indispensable to show that the person killed lived long enough to have a right of action accrue, admitting the Massachusetts case to be sound.

All that is necessary is that the wrongful act shall be such as would (if death had not ensued) have entitled the party injured to sue. The statute acts on the wrong-doer, making him liable for damages, "notwithstanding the death of the person injured." The action is given to the personal representative for the purpose, in part, of compensating the kindred named in the act, which is a wholly new and distinct ground from that which the injured party would have had, and cannot be said in any sense to survive.

The English statute, upon which the statute now being construed is drawn, in 9 and 10 Victoria, chapter 93, page 693, passed in 1846, four years after the Massachusetts statute. In Blake v. Railway Company, supra, the court of queen's bench, in fixing a measure of damages, refused to allow anything beyond the pecuniary loss to the family of the deceased, saying, in answer to the argument that the party injured, if he had recovered, would have been entitled to a solatium, and therefore his representative shall be so on his death, "it will be evident that this act does not transfer this right of action to his representative, but gives to the representative a totally new right of action on different principles." So, in New York, construing a statute passed in 1847, and framed from this English statute, in the case of Safford v. Drew, supra, the court said: "The statute, it is not to be contested, creates a new action." The title of the English act is, "An act for compensating the families of persons killed by accidents," and that of New York, Illinois, California, Michigan and Nevada is, “An act requiring compensation for causing death by wrongful act (in this state, acts), neglect or default." The first section of all is identical with the first section of the English act, after the preamble, with one immaterial exception. And it has been uniformly held that these statutes

created a new right, and introduced a new element of damages; the new right being the right to sue for damages for an act which caused death, and the new principle of damage being the pecuniary loss to the kindred resulting therefrom. See the cases cited above.

If the wrongful act is one for which the deceased, had he lived, would have had a right of action, then the person doing the act is liable to an action by the personal representative, in the language of the act, "notwithstanding the death of the person injured."

If the intention had been to give the right of action, with some limitation in respect to the time within which death must result, the legislature would have so expressed it. But the main object being to secure compensation to the kindred, it, as justly observed by counsel, was as much required in the case of a sudden as of a lingering death, when the death is the immediate as when it is not the immediate result of the injuries. I cannot discover, in the language of the act, any intention to limit the recovery to the one case rather than the other. The right of action appears to me to be given in such language as renders it immaterial whether death was the immediate result of the injury, or whether time intervened. The case in 9 Cushing is not an authority here. The statute of Massachusetts, as construed by the court of that state, was passed to keep alive a cause of action which the party dying had at the time of his death; that of Nevada to give a new right of action, in which one measure of damages should be the pecuniary loss to the kindred.

Upon the language of the code of Tennessee, which is not so clear as that of the statute of this state, it has been held that the fact that death was instantaneous was not material. Railroad Co. v. Price, 2 Heisk., 580. This case was made stronger by the holding afterwards that the action under the code was for the same cause as it would have been had the action been brought by the injured party in his life-time." Fowlks v. Railroad, 5 Baxt., 663.

In this latter case it was again held that the code made no distinction between cases of instantaneous death and others.

The case of Brown v. Railroad Co., 22 N. Y. Ct. of App., 191, is a decision upon a statute identical with the Nevada statute, so far as the first section, which confers the right of action, goes, and is precisely in point for the plaintiff. It was there held that it makes no difference, under the New York statute, whether the death is the immediate or instantaneous result, or whether it is consequential.

So in Connecticut, under a statute providing that "actions for injury to the person, whether the same do or do not result in death, . . shall survive to the executor or administrator" (Gen. St. of Conn., revision of 1866, sec. 98), it has been held that the words "whether the injury do or do not result in death" have put an end to the common-law maxim, in this class of cases, that personal actions die with the person, and that it was immaterial whether death was instantaneous or consequential. The case in 9 Cushing is said to be somewhat "nice and technical," even as a construction of the statute of Massachusetts; but, because the language of the statutes of the two states was not the same, it was not regarded by the supreme court of Connecticut as an authority which it was necessary to overrule. Murphy v. Railroad Co., 29 Conn., 496; S. C., 30 id., 184. My attention has not been called to any decision upon a statute at all like that of Nevada holding a contrary doctrine. My conclusion is that the demurrer must be sustained upon the first point discussed, and overruled upon the last. And it must be overruled upon the

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 (§§ 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 lumber 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 elevator, 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