ressel for the death of a person, caused by the negligence of the officers of such vessel.39

SECTION

7004. In general.

ARTICLE III. THE WRONGFUL ACT.

7005. Willful negligence.

7006. Death must have been proximate consequence of negligent act.

SECTION

7007. What if the act amounts to a felony.

7008. Further of felonious killing. 7009. Not necessary that defendant should be guilty of murder in the first degree.

$7004. In General. It is no defense that the "wrongful act, neglect, or default" that caused the death was unintentional.1 In Georgia, it is held that if, in resisting a battery, the assailant be willfully slain, his widow may recover damages, unless the homicide is justifiable. If it amounts either to murder or voluntary manslaughter, it is a cause of action. The aggressive conduct of the deceased, and his unlawful violence, will go in mitigation of damages. So, in an action for damages for killing a slave, the defendant could give evidence of the slave's character for turbulence and insubordination for the purpose of aiding his defense,-that the slave was killed in an act of insubordination, and also for the purpose of mitigating the dam

ages.

2

$7005. Willful Negligence.-Under a statute of Kentucky, providing that "if the life of any person or persons is lost or destroyed by the willful neglect of another person, then the widow, heir, or personal representative of the deceased shall have the right

* *

to sue such person * * * and recover punitive damages for the

loss or destruction of the life aforesaid," the term "willful neglect" has been defined "to be such conduct as evidences reckless indifference to the safety of the public, or an intentional failure to perform a plain and manifest duty, in the performance of which the public has an interest." And it is held that "willful neglect and wanton

(U.S.) 270. But see Whitton v. Chicago &c. R. Co., 25 Wis. 424. See also, Baltimore &c. R. Co. v. Wightman, 29 Gratt. (Va.) 431.

The City of Brussels, 6 Ben. (U. S.) 370. See actions for same injury: Ryall v. Kennedy, 8 Jones & Sp. (N. Y.) 347. See also, Plummer Webb, Ware (U. S.) 75; Boutiller F. Milwaukee, 8 Minn. 97; The Glendale, 77 Fed. Rep. 906; Glaholm v. Barker, L. R. 1 Ch. App. 223; s. c.

L. R. 2 Eq. 598; Smith v. Brown, L.
R. 6 Q. B. 729.

1 Tucker v. State, 89 Md. 471; s. c.
43 Atl. Rep. 778; 44 Atl. Rep. 1004;
Baker v. Bailey, 16 Barb. (N. Y.) 54.
2 Weeks v. Cottingham, 58 Ga. 559.
"Williams v. Fambro, 30 Ga. 232.
Carroll's Ky. Stat. 1899, § 6.
Jacob v. Louisville &c. R. Co., 10
Bush (Ky.) 263; Lexington v. Lew-
is, 10 Bush (Ky.) 677.

4

caused it occurred beyond the territorial limits of the State where the suit is brought, an action for wrongful death will not lie under the statute of that State, whether such act and death took place in another State or upon the high seas. It does not alter the case in this respect that both parties were citizens of the State where suit is brought; or that the wrong-doer was a corporation chartered by that State; or that the injury was occasioned by negligence which was a breach of a contract entered into in that State; or that the corporation whose wrongful act inflicted the injury was chartered both in the State where the death occurred and in the State where the suit was brought; or that the person injured was brought into the State before his death, and there died. In Illinois, it is held that, as corporations are local to the State which creates them, the right of action against them must be local to the same State, however it may be as to individuals." In Massachusetts, it has been held that an action for the death of a person in another State cannot be maintained in Massachusetts where the remedy sought is not in conformity with the laws or practice of the Commonwealth, and which did not exist at common law ;10 and that an indictment against a common carrier for the loss, by his negligence, of the life of a passenger, must allege that administration has been taken out in that State.11

§ 6992. Action in Another State if Statute is Not Dissimilar.-An action for death caused in the State where the statute has provided a

* Vaughn v. Bunker Hill &c. Min. Co., 126 Fed. Rep. 895; Stewart v. Baltimore &c. R. Co., 6 App. Cas. (D. C.) 56; s. c. 23 Wash. L. Rep. 247; Beach v. Bay State &c. Co., 10 Abb. Pr. (N. Y.) 71; s. c. 30 Barb. (N. Y.) 433; rev'g s. c. 27 Barb. (N. Y.) 248; 6 Abb. Pr. (N. Y.) 415; Vandeventer v. New York &c. R. Co., 27 Barb. (N. Y.) 244; Vanderwerken v. New York &c. R. Co., 6 Abb. Pr. (N. Y.) 239; Whitford v. Panama R. Co., 3 Bosw. (N. Y.) 67; s. c. aff'd, 23 N. Y. 465; Campbell v. Rogers, 2 Handy (Ohio) 110; Hover v. Pennsylvania Co., 25 Ohio St. 667; Derr v. Lehigh Valley R. Co., 158 Pa. St. 365; s. c. 33 W. N. C. (Pa.) 295; 27 Atl. Rep. 1002; Nashville &c. R. Co. v. Eakin, 6 Coldw. (Tenn.) 582; Needham v. Grand Trunk R. Co., 38 Vt. 294. See also, Hagan v. Kean, 3 Dill. (U. S.) 124.

Mahler v. Norwich &c. Transp. Co., 45 Barb. (N. Y.) 226; s. c. aff'd, 35 N. Y. 352.

Whitford v. Panama R. Co., 23 N. Y. 465; aff'g s. c. 3 Bosw. (N. Y.)

67; Crowley v. Panama R. Co., 30 Barb. (N. Y.) 99.

• Whitford v. Panama R. Co., 23 N. Y. 465; aff'g s. c. 3 Bosw. (N. Y.) 67; Crowley v. Panama R. Co., 30 Barb. (N. Y.) 99.

'State v. Pittsburg &c. R. Co., 45 Md. 41; Belt v. Gulf &c. R. Co., 4 Tex. Civ. App. 231; s. c. 22 S. W. Rep. 1062. But see Berry v. Montgomery &c. R. Co., 39 Ga. 554.

8 Van Doren v. Pennsylvania R. Co., 93 Fed. Rep. 260; s. c. 35 C. C. A. 282; De Harn v. Mexican Nat. R. Co., 86 Tex. 68; s. c. 7 Nat. Corp. Rep. 350; 23 S. W. Rep. 381; Needham v. Grand Trunk R. Co., 38 Vt. 294.

right of action therefor, can be maintained in any State in which the common-law obstacle has been removed if the statute of the place where the cause of action arose is not inconsistent with the statute or public policy of the State in which the right of action is to be enforced. In Ohio, the right to sue for a death occasioned in a sister State is governed by a statute which authorizes such an action only where the laws of the sister State allow the enforcement in its courts of the statutes of Ohio of like character. 13 This act was held to be an obstacle to a suit in that State by an administrator of a railroad employé to recover for a wrongful death occurring from the negligence of the company in Indiana, where the Indiana Employer's

Liability Act provides that where a citizen of Indiana in the employ of a railroad corporation extending into another State is injured in such other State, and a suit for the injury shall be brought in Indiana, it shall not be competent for the corporation to prove the statutes or decisions of the State where the injury was occasioned as a defense to the action. 15

§ 6993. Substantial Similarity, Not Identity of Statutes Required. -All that is necessary to sustain the action is that there should be substantial similarity between the law of the State where the action is instituted and that of the State where the injury was received.1o It is not regarded as a substantial dissimilarity that the laws governing the time for the commencement of the action in the two States should differ;17 or that the laws of one State should give the right of action to the personal representative of the deceased and the laws of the other State should give that right to the beneficiaries;18 or that the statutes should differ as to the amount of the recovery;19 or that the statutes of the two States relative to the distribution of the damages should be unlike.20 So, an action by the next of kin given by the statute of a foreign State is enforceable in New York for a death occurring in the foreign State, where the statute of the foreign State and the New York statute are alike except that the former allows a recovery for pain and suffering of the deceased.21 And so, an action for death caused by negligence in Maryland, where the statute provides for an action in the name of the State as nominal plaintiff, but for the benefit of certain prescribed heirs, is not such a special remedy for a purely statutory right of action as will prevent the maintenance of an action by the administrator in the District of Columbia, where the statute of the District of Columbia provides for actions for personal representatives in such case for the

14 Burns' Rev. Stat. Ind. 1901, § 7086.

15 See Wabash R. Co. v. Fox, 64 Ohio St. 133; s. c. 59 N. E. Rep. 888.

10 Cavanagh v. Ocean Steam Nav. Co., 19 Civ. Proc. Rep. (N. Y.) 391; s. c. 13 N. Y. Supp. 540; Harrill v. South Carolina &c. R. Co., 132 N. C. 655; s. c. 44 S. E. Rep. 109.

17 Weaver v. Baltimore &c. R. Co., 21 D. C. 499; s. c. 21 Wash. L. Rep. 179.

19 Wooden v. Western &c. R. Co., 126 N. Y. 10; s. c. 9 Rail. & Corp. L. J. 369; 36 N. Y. St. Rep. 387; 26 N. E. Rep. 1050; aff'g s. c. 35 N. Y. St. Rep. 685; 12 N. Y. Supp. 908; Wintuska v. Louisville &c. R. Co., 14

Ky. L. Rep. 579; s. c. 20 S. W. Rep. 819 (no off. rep.).

19 Wooden v. Western &c. R. Co., 126 N. Y. 10; s. c. 9 Rail. & Corp. L. J. 369; 36 N. Y. St. Rep. 387; 26 N. E. Rep. 1050; aff'g s. c. 35 N. Y. St. Rep. 685; 12 N. Y. Supp. 908 (in such a case the law of the forum will govern and limit the amount of the recovery). But see Oates v. Union Pac. R. Co., 104 Mo. 514; s. c. 16 S. W. Rep. 487.

20 Dennick v. Railroad Co., 103 U. S. 11; Florida Cent. &c. R. Co. v. Sullivan, 120 Fed. Rep. 799; s. c. 57 C. C. A. 167; 61 L. R. A. 410.

benefit of certain prescribed heirs, although the beneficiaries may not be exactly the same under the two statutes.22

§ 6994. Action Will Not Lie where Statutes so Dissimilar as to be Incapable of Enforcement.-Courts will refuse to take jurisdiction of the action where there is such dissimilarity between the statutes that the State whose jurisdiction is invoked cannot enforce the law of the State where the injury from which the death resulted was received.23 This doctrine is illustrated by a case where an action was brought in Texas for the death of one whose injuries were received in Mexico. The Texas statute, as construed by the courts of that State, allows damages where the person killed stood in the relation of husband, wife, or parent to the beneficiary, the amount to be fixed by the jury in the exercise of their own knowledge, experience, and sense of justice, and the right to such damages is not affected by the remarriage of the surviving wife or husband. Under the laws of Mexico liability is limited to the furnishing of a continuing support to the legal dependents of the deceased during the time such support would have been due from the deceased, in amounts proportioned to his ability to give the support and the necessities of those entitled to receive it, which questions are to be determined by the judge. The recovery under the laws of that country is in the nature of alimony or a pension awarded by the court to each beneficiary, payable in monthly installments, which cease, in the case of wives

Stewart v. Baltimore &c. R. Co., 168 U. S. 445; s. c. 42 L. ed. 537; 25 Wash. L. Rep. 814; 3 Va. L. Reg. 645; 18 Sup. Ct. Rep. 105.

* Belt v. Gulf &c. R. Co., 4 Tex. Civ. App. 231; s. c. 22 S. W. Rep. 1062. By the common law of Connecticut an action for personal injuries does not survive to the administrator of the person injured, and there is no statute in that State by virtue of which a common-law action for personal injuries is revived or made to survive to an administrator of the person injured. The fact that defendant railroad company was incorporated in both States, and that deceased was a citizen of Massachusetts, cannot effect liability for an accident occurring in Connecticut, where the action is brought in Massachusetts: Davis v. New York &c. R. Co., 143 Mass. 301; s. c. 3 N. E. Rep. 408. An action by a widow for the death of her hushand, occasioned in Arkansas, in

which State, in the absence of administration, she can sue as the sole heir of the husband, and where exemplary damages are not allowed, cannot be maintained in Texas, where such damages are allowed, and where the widow of a man killed is the direct and immediate beneficiary under the statute, suing in her own right, and where the period of limitation is different, especially when an administrator had been appointed in Arkansas pending the action, but was discharged and the administration closed to avoid a plea in abatement on that ground. Although a cause of action is given by the statutes of both States for wrongfully causing death, they are not sufficiently similar to warrant the courts of one State to enforce the statute of the other: St. Louis &c. R. Co. v. McCormick, 71 Tex. 660; s. c. 9 S. W. Rep. 540; 1 L. R. A. 804.