$7058. Posthumous Child.-Children born after the decease of the father for whose death the action is brought, are included in the designation "children" in these statutes;67 and the fact that other beneficiaries have recovered damages for the wrongful death of the deceased will not defeat an action by a posthumous child under the Texas statute. In California, however, the position is taken that where a child is unborn, and its existence is unknown to the defendant at the time the judgment is rendered in favor of the widow or other heirs, such judgment is a bar to a subsequent action by such unborn child to recover for its father's wrongful death, under the statute authorizing such action to be brought either by the heirs or by the personal representatives of the deceased, notwithstanding another enactment providing that an unborn child is deemed to be in existence so far as necessary for its interests in the event of its subsequent birth.71

72

70

$7059. Effect of Emancipation of Child.-An action for the benefit of a parent may be instituted although the deceased child, a son, had been emancipated. Where emancipation is relied upon as a defense, that fact must be established by clear evidence.73 It was held that this fact was not established in a case where the plaintiff's wife died shortly after the birth of a child, and the grandmother testified that the wife gave the child to her and that it was taken to her home and cared for by her with the consent of the plaintiff, who remained in another town and kept house with two other minor children. A child will not be denied the right to participate as a statutory bene

&c. R. Co., 144 Ind. 459; s. c. 43 N.
E. Rep. 447; 32 L. R. A. 309; Thorn-
burg v. American Strawboard Co.,
141 Ind. 443; s. c. 40 N. E. Rep.
1062; Alabama &c. R. Co. v. Wil-
liams, 78 Miss. 209; s. c. 28 South.
Rep. 853; 51 L. R. A. 836; Illinois
Cent. R. Co. v. Johnson, 77 Miss.
727; s. c. 28 South. Rep. 753; 51 L.
R. A. 837; Harkins v. Philadelphia
&c. R. Co., 15 Phila. (Pa.) 286; Dick-
inson v. North-Eastern R. Co., 2
Hurl. & Colt. 735; Clarke v. Coffin,
[1891] A. C. 412. But see Security
Title &c. Co. v. West Chicago St. R.
Co., 91 Ill. App. 332; Muhl v. Michi-
gan Southern R. Co., 10 Ohio St.
272. The mother of an illegitimate
child may maintain an action for its
death caused by defendant's negli-
gence, without joining the reputed
father of such child, although he is
alive, under Mo. Rev. Stat., § 4425,
making such an action maintainable
by the father and mother, whether
the deceased minor be a natural

74

born or adopted child: Marshall v. Wabash R. Co., 120 Mo. 275; s. c. 25 S. W. Rep. 179.

Nelson v. Galveston &c. R. Co., 78 Tex. 621; s. c. 14 S. W. Rep. 1021; 11 L. R. A. 391; Texas &c. R. Co. v. Robertson, 82 Tex. 657; s. c. 17 S. W. Rep. 1041; The George and Richard, L. R. 3 Ecc. & Ad. 466.

es Galveston &c. R. Co. v. Contreras, 31 Tex. Civ. App. 489; s. c. 72 S. W. Rep. 1051.

60 Cal. Code Civ. Proc., § 377.
70 Cal. Civ Code, § 29.

71 Daubert v. Western Meat Co., 139 Cal. 480; s. c. 69 Pac. Rep. 297; 73 Pac. Rep. 244.

72 St. Joseph &c. R. Co. v. Wheeler, 35 Kan. 185; Philpott v. Missouri &c. R. Co., 85 Mo. 164.

73 Berry v. Louisville &c. R. Co., 128 Ind. 484; s. c. 28 N. E. Rep. 182.

74 Elwood Electric St. R. Co. v. Ross, 26 Ind. App. 258; s. c. 58 N. E. Rep. 535.

ficiary on the ground of his emancipation, unless that fact is clearly established. Thus, in an action under the Indiana statute providing that the damages shall enure to the exclusive benefit of the widow and children, it appeared that the son of the decedent was a minor at the time the judgment was obtained, but for several years had not lived at his father's home, and during that time the father had contributed nothing to his support. The son left his home while the father was out of employment, and went to live with another person, who furnished him with board and clothes and sent him to school in consideration of receiving the benefit of his labor. It was held that the son was not so far emancipated as not to have a pecuniary interest in his father's life, and was entitled to share in the fund recovered.75

§ 7060. Parties in Actions for Felonious Killing.—In Kentucky, the widow and children of one who has been feloniously and maliciously killed by another, and not the administrator of the deceased, are the proper parties to maintain the action for the wrongful death;76 and it has been held that this right is not taken away by a statutory provision that the action shall be brought by the personal representative of one whose death results from an injury inflicted by "negligence or wrongful act." A Georgia statute provides that the husband may recover for the homicide of his wife, and, if she leave child or children surviving, the husband and children shall sue jointly, with the right to recover the full value of the life of the deceased;78 and children, though adults, are held to be necessary parties under this statute.79

$ 7061. Parties in Actions for Death in Mines.-Under statutes enacted to promote safety in mining operations, the right of action is in most cases given first to the widow, and, in the event that the deceased left no widow, then to designated next of kin; the action is not to be maintained by the administrator of the deceased. Such a

80

Duzan v. Myers, 30 Ind. App. judgment: Coleman v. Hyer, 113 227; s. c. 65 N. E. Rep. 1046.

76 McClurg v. Ingleheart, 17 Ky. L. Rep. 913; s. c. 33 S. W. Rep. 80 (no off. rep.); Morgan v. Thompson, 82 Ky. 383.

McClure v. Alexander, 15 Ky. L. Rep. 732; s. c. 24 S. W. Rep. 619 (no off. rep.).

T8 Ga. Civ. Code 1895, § 3828.

TO Roberts v. Central &c. R. Co., 124 Fed. Rep. 471. But it seems that they are not entitled to share in the

Ga. 420; s. c. 38 S. E. Rep. 962.

So Maule Coal Co. v. Partenheimer, 155 Ind. 100; s. c. 55 N. E. Rep. 751; Boyd v. Brazil &c. Coal Co., 25 Ind. App. 157; s. c. 50 N. E. Rep. 368; 57 N. E. Rep. 732; L. T. Dickason Coal Co. v. Unverferth, 30 Ind. App. 546; s. c. 66 N. E. Rep. 759. Under Ill. Act April 18, 1899, § 33, in relation to miners (Hurd's Rev. St. 1899, p. 1175), providing that in case of death by willful violation of

statute authorizes but one recovery for the entire loss, and does not permit separate actions by the different beneficiaries.81 Under the Missouri statute on the subject, the action is to be maintained solely by the widow where the deceased left a surviving widow, and she is not required to make the surviving children joint parties.82

$7062. Identity of Claimants.-The question whether persons claiming as beneficiaries are making a rightful claim as such beneficiaries may become an issue, and, when raised, evidence clearly relevant to that issue should be received. Thus, where it was denied that one claiming a distributive share of the recovery as the widow, was the lawful widow of the deceased, evidence that the deceased had a lawful widow then living other than claimant, and that he had children then living by such widow, was admissible.88

$7063. Persons Liable.-Statutes of this character apply equally where the wrong-doer causing the death is a corporation as where he is a natural person.84 The expression "any railroad" in the Texas statute has been construed to include street-railroad companies.85 In Massachusetts, however, a stricter construction of statutory language resulted in excluding street-railroad companies from liability under statutes making a “railroad company" liable for loss of life by negligence. The Texas courts exclude express companies occupying

86

the act a right of action shall accrue to the widow of deceased, his lineal heirs or adopted children, or any other person who was dependent on him for support, the right of action is in the widow, if there is one; if not, then in lineal heirs, which include parents, or adopted children; or, if none, then in persons dependent; but brothers or sisters have no cause of action unless they were dependent on deceased: Willis Coal &c. Co. v. Grizzell, 198 Ill. 313; s. c. 65 N. E. Rep. 14; rev'g s. c. 100 Ill. App. 480.

Beard v. Skeldon, 113 Ill. 584. Cole v. Mayne, 122 Fed. Rep. 836; Hamman v. Central Coal &c. Co., 156 Mo. 232; s. c. 56 S. W. Rep. 1091; Poor v. Watson, 92 Mo. App. 89.

(N. Y.) 54; Pennsylvania R. Co. v. Vandiver, 42 Pa. St. 365; Louisville &c. R. Co. v. Burke, 6 Coldw. (Tenn.) 45; Burns v. Merchants' &c. Oil Co., 26 Tex. Civ. App. 223; s. c. 63 S. W. Rep. 1061; Fleming v. Texas Loan Agency, 87 Tex. 238; s. c. 26 L. R. A. 250; 27 S. W. Rep. 126; Lynch v. Southwestern Tel. &c. Co. (Tex. Civ. App.), 32 S. W. Rep. 776; 2 Am. & Eng. Corp. Cas. (N. S.) 574 (no off. rep.); Rigdon v. Temple Water-Works Co., 11 Tex. Civ. App. 542; s. c. 32 S. W. Rep. 828; Railway Co. v. Whitton, 13 Wall. (U. S.) 270. See also, Illinois &c. R. Co. v. Cragin, 71 Ill. 177. Those controlling and operating a railroad and having exclusive possession of it, are liable to indictment for negligence whereby one is killed, under a statute making the "proprietors" liable: State v. Boston &c. R. Co., 58 N. H. 410.

85 Bammel v. Kirby, 19 Tex. Civ. App. 198; s. c. 47 S. W. Rep. 392.

So Holland v. Lynn &c. R. Co., 144 Mass. 425.

cars and parts of cars in a train exclusively controlled by a railroad company, and telephone companies,ss from liability under statutes making carriers liable for death by negligence.89 Receivers of insolvent corporations may be sued under leave of the court.90 Generally the servant guilty of the negligent act causing the death may be sued jointly with the master for the negligence.91 Likewise, one who incites or encourages another to the commission of the wrongful act which results in the death of a third person will be liable in damages for the death of the latter.92 Counties,93 townships, and municipal corporations will be liable for death by negligence in cases where

they would have been liable had not death intervened, within principles of negligence more amply presented elsewhere.96

tions for damages by reason of maintenance of a sewerage system, death caused by the wrongful act, as the municipality in such case was neglect, or default of another does exercising a delegated power of the not authorize an action against a State: Hughes v. Auburn, 161 N. Y. city by the representatives of one 96; s. c. 55 N. E. Rep. 389; rev'g who died of disease superinduced s. c. 21 App. Div. (N. Y.) 311; s. c. by the neglect of sanitary precau- 47 N. Y. Supp. 235. tions on the part of the public au- * See Vol. V, § 5782, et seq. thorities in the construction

or