Martin v. Wabash R. Co.
| Decision Date | 01 August 1905 |
| Docket Number | 1,168. |
| Citation | 142 F. 650 |
| Parties | MARTIN v. WABASH R. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Geo. C Otto, for plaintiff in error.
John M Zane, for defendant in error.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.
The action, in the court below, was by Martin, a citizen of Illinois, against the Wabash Railroad Company, a corporation of Ohio, to recover for personal injuries received by Martin in Indiana, said to have been caused by the negligence of the Railroad Company.
At the close of the evidence, on motion of the defendant below, the jury was instructed to find a verdict for the defendant below, and on his verdict judgment was entered. To reverse this judgment this writ is prosecuted. After judgment, but pending hearing here, Martin died.
Motion is now made to substitute the executrix with leave to prosecute this writ of error. Also a counter motion to dismiss the writ of error.
The two motions involve this question: Under the law applicable to this cause, does the action survive, notwithstanding the death of the plaintiff below?
By the Judiciary Act of 1789, embodied now in the Revised Statutes 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 such suit to final judgment. ' Whether a cause of action survives by law, is not a question of procedure, but of right; and is determinable when the action is one arising at common law, not by the law of the state where the injuries were inflicted, but by the law of the state where the action is brought. Martin, Adm'r, v. Baltimore & Ohio R.R. Co., 151 U.S. 691, 14 Sup.Ct. 533, 38 L.Ed. 311; Baltimore & Ohio R.R. Co. v. Joy, 173 U.S. 226, 19 Sup.Ct. 387, 43 L.Ed. 677.
The Statutes of Illinois, the state in which the action was brought, provide as follows:
'In addition to actions which survive by the common law, the following actions also survive: Actions of replevin, actions to recover damages for an injury to persons (except slander and libel) * * * . ' Hurd's Rev. St. 1903, Ill. c. 3, Sec. 123.
Holton v. Daly, Adm'x, 106 Ill. 131, was a case where, after recovery for personal injuries in the Circuit Court of Cook County, and the reversal of the judgment by the Appellate Court, the plaintiff died; whereupon, on the application of the administratrix to be substituted as party plaintiff, the defendant moved the court to dismiss the cause, as one not surviving to the administratrix. The motion was overruled; and the action of the lower court was, in that respect, sustained by the Supreme Court-- the Supreme Court holding, that in the absence of a showing on the record that the plaintiff had died as the result of the injuries (thereby, presumably, creating another cause of action) the motion to dismiss was 'not practicable.'
Chicago & Eastern Illinois Railroad Company v. O'Connor, 119 Ill. 586, 9 N.E. 263, was the case of an action for personal injuries in the Superior Court of Cook County, resulting in a judgment for plaintiff, pending an appeal from which to the Appellate Court, the plaintiff died. The Appellate Court having reversed the judgment of the Superior Court, and remanded the cause for trial de novo, the defendant filed a plea in abatement, averring that the plaintiff had died from causes other than the injuries described in the declaration. To this plea a demurrer was sustained, and afterwards, on motion, the plea was stricken from the files; and these rulings were affirmed in the Supreme Court, the court holding that actions of that kind survive. In the opinion occurs this statement of the Illinois law:
'When the death is the result of injuries for which the suit is brought, the action must be prosecuted after the death, for the benefit of the widow and next of kin, and in such case, there can be no recovery for the bodily pain and suffering; but where the death results from a cause other than the injuries for...
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