Ash v. Baltimore & O. R. Co.
| Decision Date | 18 March 1890 |
| Citation | 19 A. 643,72 Md. 144 |
| Parties | ASH v. BALTIMORE & O. R. CO. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Cecil county.
Action by Sarah A. Ash, administratrix of Cecil F. Weaver, against the Baltimore & Ohio Railroad Company, to recover damages for the death of her intestate.
Argued before ALVEY, C.J., and ROBINSON, IRVING, BRYAN, MCSHERRY and MILLER, JJ.
Albert Constable, for appellant.
John S. Wirt, for appellee.
This action was brought by the plaintiff, the present appellant, as administratrix of Cecil T. Weaver, deceased, against the defendant company, to recover damages for the alleged killing of the intestate by means of the negligent and improper structure of one of the bridges on the road of the defenuant in the state of West Virginia. Weaver, the deceased, was a citizen of Maryland, and at the time of his death, in June, 1888, was employed as a postal clerk in the service of the post-office department of the United States. His route, by the defendant's railroad, was between Baltimore, in Maryland, and Grafton, in West Virginia. At the time of the accident the train was bound east from Grafton; and it is supposed, though there was no witness to the fact, that the deceased, while performing his duty in taking in a mail pouch hanging from a crane, came to his death by having the back of his head brought violently in contact with one of the timbers of the railroad bridge over Great Cacapon creek, in West Virginia. Death was instantly produced; but whether from the negligent act of the deceased, or solely from the negligent and improper structure of the bridge, was a question of fact, which, upon the evidence, it is unnecessary for us to express any opinion.
The action is not founded upon the statute of this state, which gives the right of action whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, for the benefit of the wife, husband, parent, or child of the person whose death shall have been so caused, to be brought in the name of the state, for the use of the persons so entitled, (Code, art. 67;) but it is founded on the statute of West Virginia, which in many respects is essentially different from the provisions of our statute. The West Virginia statute (Code W.Va. p. 709, § 6) is set out in the declaration, and it was read in evidence, and is inserted in the bill of exception. That statute, after providing that damages may be recovered for the death of any person caused by the wrongful act, neglect, or default of another, proceeds to provide that By our statute the limitation to the right of action is confined to one year, and there is no restriction as to the amount of recovery. At the close of the evidence introduced on the part of the plaintiff, the defendant offered a prayer for instruction to the jury that there was no evidence legally sufficient to entitle the plaintiff to recover, and that prayer was granted; and whether that instruction was right or wrong is the only question presented on this appeal.
The plaintiff was bound to show, both by pleadings and proof, that she had a right, upon the law and the facts, to maintain the action; and, as this is a special action founded exclusively upon the statute of a neighboring state, the only principle upon which it can be sustained in the courts of this state is that of comity; and, if it be not sustainable upon that ground, there was clearly no error committed by the court below in withdrawing the case from the jury. There is no pretense that this action is maintainable at the common law, or upon common-law principles. It is a special action given by a statute which has no inherent authority or binding force beyond the limits of the state which enacted it. We suppose it to be quite clear if, instead of founding this action upon the statute of West Virginia, it had been instituted and attempted to be maintained upon and by virtue of the statute of this state, to the provisions of which we have referred,--the statutes of the two states being essentially dissimilar in their provisions,--the action could not have been sustained, unless we were to attempt to give extraterritorial force to our statute, and to make it apply to acts and transactions occurring in other states; and, if our statute cannot be so extended and applied, there can be no reason why statutes of other states, not similar in provisions to our own, though belonging to the same general class of legislation, should be allowed extraterritorial force and operation by the courts of this state. By the statute of West Virginia the right of action accrues to the personal representative of the deceased, the executor or administrator, and the damages, limited in amount, and hence in the nature of a penalty, are directed "to be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate," whether such parties be wife or children or collateral relations of the deceased, whereas, by our statute the right of action is given directly to the parties who suffer damage by the death of the deceased, namely, the wife, husband, parent, or child, and which action is to be prosecuted in the name of the state, for the use of the persons entitled; and the jury are required to apportion the damages assessed.
An administrator or executor appointed in this state receives his power and authority to sue and maintain actions from the laws of this state, and from this state alone. It is according to the laws of this state that he must conduct...
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