Cleveland, C., C. & St. L. Ry. Co. v. Osgood

• Decision Date: 16 February 1905
• Docket Number: No. 4,639.,4,639.
• Citation: 73 N.E. 285,36 Ind.App. 34
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. OSGOOD.

36 Ind.App. 34

73 N.E. 285

CLEVELAND, C., C. & ST. L. RY. CO.

v.OSGOOD.

No. 4,639.^*

Appellate Court of Indiana, Division No. 2.

Feb. 16, 1905.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Henry S. Osgood, administrator of Thomas Holmes, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See 70 N. E. 839.

Elliott, Elliott & Littleton, for appellant. J. E. McCullough and H. H. Lee, for appellee.

ROBY, J.

Action for damages on account of the death of Thomas Holmes, which it is alleged occurred through the negligence of appellant. The primary question for decision presented by the assignment of error that the court erred in overruling appellant's motion for a new trial is whether such action lies when the beneficiaries designated by the statute are aliens, as the evidence discloses that the next of kin were. The question does not seem to have been decided in Indiana, and there is a hopeless conflict of authority in other states. Our statute corresponding to “Lord Campbell's Act” is as follows: “When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two years. The damages cannot exceed ten thousand dollars; and must inure to the exclusive benefit of the widow, or widower (as the case may be) and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” Laws 1881, p. 241, § 8, as amended by Acts 1899, p. 405, c. 177. The purpose of this legislation was to provide for some pecuniary compensation to be made by one person for taking the life of another, which, before this enactment, he could not have been required to make. The right to maintain the action is vested in the personal representatives of the deceased. Had the provision gone no further, the fund recovered would have been simply assets of the estate, to be disposed of as other assets. The Legislature, having the right to determine what disposition should be made of the fund, charged it with the express trust that it must inure to the benefit of the widow and children, if any, first, and, if no widow or children, then to the next of kin. Jeffersonville, etc., v. Hendricks, 41 Ind. 48-74;Memphis, etc., v. Pikey, 142 Ind. 304-311, 40 N. E. 527. The action is brought by the administrator in his representative capacity. Clore v. McIntire, 120 Ind. 262-264, 22 N. E. 128. The widow, children, and next of kin are not parties, have no right to be parties, and have no right to compromise or control the action. Yelton v. Evansville, etc., Co., 134 Ind. 414, 33 N. E. 629, 21 L. R. A. 158;Pittsburg, etc., Co. v. Moore, 152 Ind. 345-357, 53 N. E. 290, 44 L. R. A. 638. The damages recovered are by the terms of the statute “distributed in the same manner as personal property of the deceased.” The disability of aliens at common law in respect to the ownership of real estate did not extend to personal property, and aliens were capable of acquiring, holding, and transmitting movable property in like manner as citizens. Kannreuther v. Geiselbrecht, 28 Ch. D. 175; Milne v. Moore, 24 Ont. 456; Bradwell et al. v. Weeks, Adm'r, 1 Johns. Ch. 206; 2 Am. & Eng. Ency. Law (2d Ed.) p. 81. The common-law rule has neither been abrogated nor narrowed by any statute of this state. It is difficult to perceive why there should be greater reluctance in making distribution to an alien widow and children or next of kin to the deceased than in distributing to them in the same manner the proceeds of personal property owned by him. The statute is broad and conclusive in terms. No exception is made where the beneficiaries named are aliens. To deny the action because the widow, children, or next of kin are aliens and nonresidents is to incorporate into it a restriction which it does not contain. Bonthron et al. v. Phœnix, etc., Co. (Ariz.) 71 Pac. 941, 61 L. R. A. 563;Tanas v. Municipal Gas Co. (Sup.) 84 N. Y. Supp. 1053-1059. Where the decedent and the administrator were both residents and citizens of Kentucky, and the contention was that the statute applied exclusively to residents of Indiana, the Supreme Court held that the language of the act was so clear and explicit that the question could not arise; that the only condition imposed by the Legislature which must exist as a prerequisite to the maintenance of the action is that the decedent might have maintained one himself had he lived, and added: “They [the Legislature] have not said that the right shall exist only in cases where the deceased was at the time of his death a resident or citizen of Indiana; but, given the fact that the death of one has been caused by the wrongful act or omission of another, they leave for the courts solely the inquiry whether, had the injury not been fatal, the injured party could himself have recovered therefor. The above section of the Code does not limit the remedy provided for causing the wrongful death of another to resident citizens of this state, and we possess no power to thus limit the operation of the section.” Jeffersonville, etc., Co. v. Hendricks, 41 Ind. 71, 74. Much less can a legislative intent be implied to exclude from the operation of the statute Indiana administrators bringing suit to recover on account of the death of a resident of the state because the ultimate distribution of the proceeds of such action may be made to a nonresident alien. The statute is a remedial one. Stewart v. B. & O., etc., Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Bonthron v. Phœnix, etc., Co., supra; Lang v. Houston, etc., 27 N. Y. Supp. 90;Id., 144 N. Y. 717, 39 N. E. 858. The essence of the act is found in that part of it which confers a right of action, and not in that part which provides who shall bring it, or how the fund recovered shall be distributed. Its tendency is to induce care and make human life more secure-considerations of policy which are not affected by the alienage of the beneficiary. The right of personal security does not depend upon whether the individual's wife and children happen to live abroad. Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309. The wrongful act of the defendant forms the basis of the right. It is not, therefore, material, in connection with the question now under consideration, whether the statute gives a new right to the administrator (Pittsburg, etc., v. Hosea, 152 Ind. 412, 53 N. E. 419), or provides for the survival of the right possessed by the decedent. The Supreme Court of Wisconsin, in McMillan v. Spider Lake, etc., 91 N. W. 979, 60 L. R. A. 589, wholly overlooked the identity of the fact forming the substance of the action and denied recovery upon a purely artificial ground.

The point is made that such a suit mutatis mutandis does not lie in the courts of Great Britain. This court is disposed to adopt the rule of reciprocity, and an interpretation of the English authorities is therefore essential. In England, as in America, there is no right by the common law to recover damages for injuries resulting in death; but in both countries statutes have been passed to remedy this defect; the English statute commonly known as “Lord Campbell's Act” furnishing the model for those adopted in the States. The point that mutatis mutandis the action here prosecuted would not lie in England because of the alienage of the plaintiff is based upon the judgment of Mr. Justice Darling in the case of Adams v. British Foreign Steam Ship Company (1898) 2 Q. B. 430. In that case the learned judge said: “But it is a principle of our law that acts of parliament do not apply to aliens, at least if they be not even temporarily resident in this country, unless the language of the statute expressly refers to them.” In the case then being considered the mother of a Belgian alien was seeking to recover damages for his death, caused by a collision on the high seas between the Belgian ship upon which the deceased was employed and a British ship, through the negligence...