Baltimore Co v. Joy

Citation173 U.S. 226,19 S.Ct. 387,43 L.Ed. 677
Decision Date20 February 1899
Docket NumberNo. 129,129
PartiesBALTIMORE & O. R. CO. v. JOY
CourtUnited States Supreme Court

Hugh L. Bond, Jr., for plaintiff in error.

Mr. Justice HARLAN delivered the opinion of the court.

This case is before us upon a question of law certified by the judges of the United States circuit court of appeals for the Sixth circuit, under the sixth section of t e act of March 3, 1891, c. 517 (26 Stat. 826).

It appears from the statement accompanying the certificate that on the 18th day of October, 1891, John A. Hervey, a citizen of Ohio, residing in Hancock county, in that state, was a passenger on a train of the Baltimore & Ohio Railroad Company, between Chicago, Ill., and Fostoria, Ohio. While upon the train as passenger, he was injured at Albion, Ind., in a collision caused by the negligence of the railroad company. He brought suit in the common pleas court of Hancock county, Ohio, to recover damages for the personal injuries he had thus received.

Upon the petition of the railroad company, the suit was removed into the circuit court of the United States for the Northern district of Ohio, upon the ground of diverse citizenship. After such removal, Hervey died; and, against the objection of the railroad company, the action was revived in the name of the administrator of the deceased plaintiff, appointed by the proper court in Ohio.

At the time of Hervey's death, the common-law rule as to the abatement of causes of action for personal injuries prevailed in Ohio. But by section 5144 of the Revised Statutes of that state, then in force, it was provided that, 'except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance or against a justice of the peace for misconduct in office, which shall abate by the death of either party.' 1 Rev. St. Ohio 1890, p. 1491. That section was construed in Coal Co. v. Smith, 53 Ohio St. 313, 41 N. E. 254, which was an action for personal injuries caused by the negligence of a corporation and its agents. The supreme court of Ohio said: 'The action was a pending one at the time of the death of the plaintiff. It is not within any of the enumerated exceptions of section 5144, and was therefore properly revived and prosecuted to judgment in the name of the administrator of the deceased plaintiff.'

The Revised Statutes of Indiana, in which state the injury was received, provide that 'no action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue' (section 272); also, that 'a cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment and malicious prosecution' (section 283).

By section 955 of the Revised Statutes of the United States, brought forward from the judiciary act of September 24, 1789 (1 Stat. 90, c. 20, § 31), it is provided that 'when either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment.'

The question upon which the court below desires the instruction of this court is this:

'Does an action pending in the circuit court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, finally abate upon the death of the plaintiff, in view of the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohio, and that, even if suit had been brought in Indiana, the action would have abated in that state?'

If the case had not been removed to the circuit court of the United States, it is clear that under the statutes of Ohio, as interpreted by the highest court of that state, the action might have been revived in the state court in the name of the personal representative of Hervey, and proceeded to final judgment. We think that the right to revive attached u der the local law when Hervey brought his action in the state court. It was a right of substantial value, and became inseparably connected with the cause of action so far as the laws of Ohio were concerned. Was it lost or destroyed when, upon the petition of the railway company, the case was removed for trial into the circuit court of the United States? Was it not rather a right that inhered in the action, and accompanied it when, in the lifetime of Hervey, the federal court acquired jurisdiction of the parties and the subject-matter? This last question must receive an affirmative answer, unless section 955 of the...

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