Nash v. Tousley

• Decision Date: 06 May 1881
• Citation: 28 Minn. 5,8 N.W. 875
• Parties: NASH v TOUSLEY.
• Court: Minnesota Supreme Court

28 Minn. 5

8 N.W. 875

NASHvTOUSLEY.

Supreme Court of Minnesota.

Filed May 6, 1881.

Appeal from judgment of district court, Le Sueur county.

S. Smith, for appellant.

Cadwell & Everetts, for respondent.

BERRY, J.

“A cause of action arising out of an injury to a person dies with the person of either party, except as provided in the next section.” Gen. St. 1877, c. 77, § 1. “When death is caused by the wrongful act or omission of any party the personal representatives of the deceased may maintain an action, if he might have maintained an action had he lived, for an injury caused by the same act or omission, but the action shall be commenced within two years after the act or omission by which the death was caused. The damages thereon cannot exceed $5,000, and the amount recovered is to be for the exclusive benefit of the widow, and next of kin, to be distributed to them in the same proportion as the personal property of the deceased person.” Id. § 2. The right of action thus given was wholly unknown to our law before the passage of these provisions of statute. It is, therefore, altogether a creature of the statute, and must be enforced (if at all) as the statute enacts, and not otherwise. The action to enforce it must, therefore, be brought by the “personal representatives of the deceased;” that is to say, by his executor or administrator. Atkinson v. Duffy, 16 Minn. 45, authorities cited; Jones v. Tainter, 15 Minn. 512; Abbott's Law Dict. “Represent.”

Order sustaining demurrer affirmed.