CITY OF TOPEKA:.'"
April 9, 1888.)
., TO MAmTAINAOTION-PERSONAL REP. .
DEATH Bl'WRONQFUL .. ".
, . C()mp. Laws Kan. 1879,' § 420, pr()vfdes tMt "hi· addition to the causes of . 8ctiolfwhillh s'urvive at common:law, causes of action * * for an injurv 'to the person .* * shall. also !lurvive;," and by ,section 422 it is enacted tbatthe personal one whose death has been caused by wrongful act'may mamtain an action therefor. the damages recovered therein to "inure to, the exclusive benefit· of the widow and children, if any. or next of kin." . Held, that the right of action in favor of, the personal representa· tives. under section 422, was exclu!live, and that such representatives bad no right of action under section 420 for injuries to the person where the inju> rieswere such as to CBuse death. . '
SAxE-CONFLICT OF L A W S . :
The r,ightof action for injuries resultinl/:. in death being vested under 1 Rev. .St. Mo. 1879. §§ 2121 and 96. solely In tbe surviving consort. children, etc., an adminlsttatorof that state bas' no standing in the .federal courts sitting in Kansas, under Compo Laws Kan. 1879, §422. vesting such rlgbt of action in the personal representative to recover damages f.or the death of bis intestate caused there by wrongful act·. 'Following LimekiUer v. Railroad Co·· 88 Kan. 88, 5 Pac. Rep. 401. 1 .' ' .
' . '" ....
4,petitiqn against a city in Kansas, to recover damages for personal inju. 'rles resulting to plaintiff's.intestate from defendant's failure to keep its . Itreets intepalr, set up tha[fact'oftbe injury: that said Intestate bad been leriously hlltt and put to c()nslderable expense for medical attendance, etc., that sbe remained disabled. and enfeebled up' to the tilDe C)f her death, and tbat ber death was tbe result of'tbe accident. The administrator was ap· , pointed in Missouri, and a deqlUrrer to tbe petition was sustained on the ground"among otbers, tbat, under the laws of tbat state, such an 'action could not be maintaiped by the personal repr.esentatives, but should be brougbt by . the distributees, as provided by 1 Rev. St. Mo. 1879. § 2121. Leave baving been given, an amended.petltion was tiled, but tbe only additional matter lIet oui wall that tbe deceased had left a husband and son, naming tbem, and that they were next of kin. Held, on demurrer, that the additional matter did not change the question, and that the petition should be dismissed.
At Law. On demurrer to complaint. _ This was an action by A. G. Hulbert, the Missouri administrator of one Frances G. Hulbert. to recover damages from the city of Topeka. on the ground that her death had been caused by the negligent mannerin which that city kept its steeets; The accident occurred in August, 1879, and Mrs. Hulbert died in St. Louis, Mo., in March, 1886. The laws of that state as to this class of actions are found in 1 Rev. St. Mo. 1879, and are as follows:
"Sec. 94. Executors and administrators shall collect all money and debts of every kind due to the deceased, and give receipts and discbarges therefor; and shall commence and prosecute all actions which may be maintained and lAlthough, at common law, actions ex deZicro for injury to the person abate upon the death of the person injuredl yet where the statute in the state in which the injury Is inflicted gives a right of actlOn to the personal representative in such case, that right may be enforced in another state having a similar statute, in a court having jurisdiction of the defendant. Burns V. Railroad Co., (Ind.) 15 N. E. Rep. 230. It must appear from the record that the right of action could be maintained by the plainti1r in the state where the injury occurred. Hamilton v. Railway co., (Kan.) 18 Pac. Rep. 57.
HULBERT '11. CITY OF TOPEKA.
are 'necessary In the course of his administration, and. defend all are brought against him. "See. 95.1:he.y 13ha11 prosecute and defend all actions commenced by or against the dece,ased,.at the time of his death, and which might have been prosecuted or or against such executor or administrator· . "Sec. 96.. For all wrongs done to. the property, rights or interest of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or admInistrator, against such wrong-doer; and, after his death, against his executor or administrator, in the same manner, and with the like effect, in all respects, as actions founded upon contract. "Sec. 97. The preceding section sha11 not extend to actions for slander, li.b.6.1., assa.u.It Bnd bat.tery, or false imprisonment, nor to actiolls' 011 the case for .. injuries totbll ,person of the. plaintiff, or to the person of thll testator or intestate of any executor or adin:inistrator." "Sec. 2121. Whenever any person shall die from anyinjnry,rasnltingfrorn or occasioned by the negligence, unskillfulness, or criminal intent of any· officer, agent, servant, or employe while running, conducting or manag'ing any locomotive, car, or train of cars; or of any master, pilot, enginE'er, agent, or employe while running, conducting, or managing any steam-boat, or any of the machinery thereof; or of 'any driver of any stage-coach, or other public conveyance. While in charge of the same as a driver; and when any pasenger shall die from. any injury resulting from or occasi9.ned by any defect. or inSUfficiency any railroad, or any part thereof; or in any locomotive or car; or in any steam-boat, or the machinery thereof; or in any'Btage-coach, or other public conveyance,-the corporation, individual, or individuals in whose em.. ploy any such officer,agent, senant, employe, master, pilot, engineer, or driver shall be at the time sueh injury is committed, or who oWllsany stich railroad, car, stag&-coach or other public conveyance at the time a,ny injury is received, resulting from or occasioned by any defect or insutficiency above declared, Shall forfeit and pay for every person or passenger So dying the sum of five thousand dollars, which may be sued for and recovered -First, by the husband or Wife of the deceased; or, second. if there be no husband or wife,or he or ahe fails to sue within six months after such death, then by the minor child or children of tpe deceased j or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interpst in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this seetionit shall be competent for the defendant, for his defense, to show that the 'defect or insufficiency named in this section was not a negligent defect or insuftlciency. 2122. Whenever the death of a person shall be caused by s wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death ha.<l not ensued, have entitled the patty injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person ·WI'IO, Or· the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstsndingthe death of the person injured. "Sec. 2123. All damages accruing under the last preceding section shall be sued for and recovered by the same parties, and in the same manner as provided in s6ctiorttwo thousand one hundred and twenty-one, and in every such action tIle jury Illa] gi.ve such damages, not exceeding five thousand dollars, 8.11 they may deem fair .and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue,. and also having regard to the mitigating or aggravating circumst.ances attending BUch wrongful act. neglect or default."
The laws of Kansas referred. to in the opinion are found in Dassler's C,omp. Laws Kan. 1879, a,nd are as follows: ·,',Sec. 420. tn addition to the causes of action which survive at common law,causes of action for mesne profit, or for an injury to the person, or to realQr personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same." ' "Sec. 422. When the death of one is caused by the wrongful act or omis-sion 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 lived. against the latter for an injuryfor the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, lj.nd must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed' in the same manner as personal property of the deceased." G. N.Elliott, for plaintiff. 'W. 'A. S. Bird, for defendant.
BREWER, J. This case is now submitted on a demurrer to a second amended petition. The facts are these: On August 21, 1879, Frances G. HUlbert,the plaintiff's intestate; while on one of the streets of the city of Topeka, was injured; and it was claimed that the injury was <laused by the negligence of the defendant 'in failing to keep that street in.good repair. On the 3d of March, 1880, she filed her petition in the state' court. The case remained there for some four years and over, during which time it was tried, but the trial resulted in a hung jury. Thereafter it was removed to this court, and another trial had,with like result. On, the 20th of March, 1886, she died, being then a resident <If St. Louis, and the present plaintiff was duly appointed her administrator by the probate court of St. Louis. The first amended petition set up the fact of the injury; that by it the deceased was seriously injured, -and was put,to considerable expense for medical attendance, etc.; and that she remained disabled and infeebled up to the time of her death, and that those injuries caused her death. To this petition a demurrer was filed, which was sustained by my :Brother FOSTER, and leave given to file a second amended petition. The only additional matter set forth in this petition is that the deceased left surviving a husband and son, naming thetll, who are her next of kin. I do not see that this, changes the question iQ the slightest degree; so that this demurrer simply brings up for a second hearing the matter once determined by the district judge. Upon the question thus presented, although I might content myself with saying that the matter has once been settled in this court, I make these observations: The fed era! courts sitting in this state administer the lawSl of the state as prescribed by its legislature, and expounded by its supreme court. Whatever limitations there maybe to this general rule do not apply in a case of this kind, which depends simply upon the construction to be given to the statutes of the state. At common law no action for pertiona! injuries survived, and if there be a survival in this state, and to
HULBERT t1. CITY 0" TOPEKA.
the extent that there is a survival, must be determined by ihe state stair utes. Now, that an administrator appointed in Missouri cannot mainan action under section 422 for a wrongful act causing death to the intestate, is settled in the caseo! LimekiUer v. Railroad Co., 33 Kan. 83, 5. Pac. Rep. 401. The supreme court of Missouri, construing the statutes of that state, also rules that an admiuistrator cannot maintain Buch an action in her courts. Vawter v. Railway Co., 84 Mo. 679. The only action which can be maintained in Kansas when the wrongful act of the defendant causes the death of the intestate is that provided for by seetion 422. This was affirmed by the "supreme court in McCarthy v. Railroad (h., 18 Kan. 46, in which the court uses this language: "Section 420,"-which section provides for a survival of actions for personal injuries,-"as construed with section 422, only causes an action to survive for injuries to the person when death does not result from such injuries, but does occur from other circumstances. The right of action under SeCtion 422 is exclusive, and an administrator could not maintain an action under sections 420 and 422 for the same injury. When death results from wrongful acts, sectio0422 is intended solely to apply. Read v. Railway Co., L. R. 3 Q. B. 555; Andrews v. Railroad Co., 34 Conn. 57." I was a member of the supreme bench of Kansas at the time this opinion was filed and concurred in it. I feel constrained to follow that decision; and yet I may be permitted to say that my examination of this case has. led me to doubt the correctness of that conclusion, for the measure of damages and the busis of recovery under the two sections are entirely distinct. Section 422 gives a new right of action,-one not existing before; an action' which is not founded on survivorship; an action which takes no account of the wrong done to the decedent, but one which gives to the widow or next of kin damages which have been sustained by reason of the wrongful taking away of the life of the decedent. It .makes no difference whether theinjured party was killed instantly, or lived months; whether he suffered lingering pain or not; whether or not hE:) was put to any expense for medical attendance and nursing. None of these matters are to be considered in au action under section 422; and. the single question is, how much has the wrongful taking away of his life injured his widow or next of kin? It is. an action to recover damages for the death, and in no sense a survival of an action which accrued to the decedent before his death; whereas, on the other hand, section 420 provides for the survival of an action which the decedent himself had in his life-time. Suppose, as in this case, the decedent lived a long time after injury; was putto great expense for medical attendance and nursing,-for these matters which work a loss to the estate, she had a right of action in her life-time. That action, it is which, by section 420, survives. The distinction between the two sections is pointed out by the supreme court of Vermont in Needhamv. Railroad Co., 38 Vt. 294, lIB follows: "The principles on which the intestate's cause of action rested at common law are the same, irrespecti'Ve of th6 cause of his death. He had a right of action for the injury, and that right existed till his death. At common law v.34F.no.7-33
bis right died with hlsllel'$ol1. but Is revived: by the statute in favor. b,)'tbe on t?e claim of b!s underthe pro.vlslons 'of section 12, could mclude nothmg more of hIS than his intestate's cause of aCtion; That section simply revives. but does, not enlarge, thecommon-]awright of the intestate. Under the provisions ·of that section it is evident that no damages could be asaessedby reason of his death, nor resulting from his death. sum recovered by the administrator in an action founded, exclusively upon the claim of bis intestate, under the provisions of the twelfth would be treated as assets in the hands of the administratorf6r distriblltionamongthe creditors and heirs of the intestate, agreeably to the general ofOllr statute. 1.'he intent ofthefifteenth, sixteenth, and seventeenth sections was to make the damage, or pecuniaryinjury resulting from such death to the widow and next of kln;the subjEjC?t of anew, cau,se right of recovery Wholly distinct from the consequehces, of the wrong to the i,njured party, and wholly distinct from his claim,for damages resultipgfroiii suoh injury. The provisions oftha lastmentioned sections have introduced principles Wholly unknown to the common law, or to any previous statute of this 'state, namely, that the value of a man's life to his wife and next of kin constitutes a part of his estate to,be administered byms p,ersQnal representative.. and that the whale proceeds of the recovery for. such loss shall go to his ;WidOW or surViving relatives. Not;. Withstanding ,the \lction in sllch ,case is to be prosecuted In point of form by the executor or allministrator, be is only a trustee l}f the sum recovered, for the use of the, Widow and next of kin; and. the sum so recov.ered cannot be treated as assets In his hands foi' distribution arilong the creditors. No right of action under the prOVisions of section 15 exists dul'ing the life time of the injured party.. When!leath cjccurs from the injury, the right of action given under the pl'ovJ,sions 9£ section arisElsafter and at the moment of his decease. The resulting from his death are then prospective. Suob damages to the widow and next of kin begin where the damages of the intes, tate ended, Viz., with his death. II "
So, also, in Blake v. Railway 00., 10 Eng. Law & Eq. 443, J., commenting on the British statutes, says: ,
"It wiiI be evident that this act Cioes not transfer this right of action [for lOss and SUffering of the deceasedl to bis representatives, but gives to the representatives a: totally new right of action upon different principles." "The measure· or damages is not the loss or'stiffering of the deceased, but the injury resulting from his death to the family." It is obvious that both of these causes of action may exist against two different parties, and why may they not exiat against the same party? an assault and battery upon B., a cause of action exists in favor (If B. against A. for those injuries which survives by section 420. Suppose, after such action is instituted by B., he should be killed by thewl,"ongful acts of C·. There certainly would be an action under sectiqn422 against C. for such wrongful death. Would that defeat the action, or would noUhatsurvivej as provided under section 4201. If tha,t be true where there are. two wrong.doers; why should it not also be true where there is but one wrong-doer? Still, although I; am much impressed .with the for<;l6. of this reas<;ming, I feel constrained to follow the decisions of the supreme court of the state; for, as r'said heretofore, this court is bound to administer the laws of the state as in-
by herstiprem6 cotirt. The demurrer will be sus'tained. As the amount over $5,000, of course, the plaintiff 'cw,l take the opinion of the supreme court. '
AURORA HrLL CoN. MIN. CO· .".
(Oircuit (Jourt,D. N(Jf)ada.
85 MINtNG Co. et til.
April 18, 1888.)
MINES AND MINING-AcQuISITION-ANNuAL EXPENDITURE. '
An applicant for a patent to a mining claim, who has made final entry, paid the purchase money for the laud embraced in the survey of the claim, and has obtained,his certificate of purchase therefor, is not obliged to continue the annual e:xpenditure upon the claim required by section 2324, Rev. St., pending upon his application. and issuance of patent. " tinal An entry and certiticate of purchase, so long 8S they remain uncanceled, 8re equivalent to a patent, so far 8S the rights of third parties are concerned. A mining location made without prior right of entry upon the ground is void. There can be no valid location made without prior rIght of entry. ,Location confers no right of entry where such right did not previouslYllXist. The decisions of departmentofficers upon questions of law or fact are not subject tocollateral attack. Upon questions of fact their decisions are conclusive upon all parties; upon questions of law their decisions can only be reo viewed in a proper case mad,e in a direct proceeding for that purpose. Evidence is not admissible, in an action at law, to show error in the decision of an officer of the land department upon any matter submitted to such officer for his decision. Generally, any person vested with immediate right of posscsslonc8n main· tain ejectment. As against 8 trespasser, prior possession will support the action.As to mining claims. possessory title is sufficient. Rev. St. §910. Rule adopted in this case.
SAME-CERTIFICATE OF PURCHASE.
SAME-LoCATION WITHOUT PRIOR ENTRY.
SAMlll-GEl'lERAL LAND-OFFICE-COLLATERAL ATTACK OF DECISION.
SAME-EJECTMENT-TITLE TO MAINTAIN.
SAME-CONVERSION OF ORE-MEASURE 01' DAMAGES.
(Bgllab1U by the (lourt.)
At Law. R. M. Clarke, for plaintiff. A. C. Ellw, for defendants.
Before SABIN, District Judge. SABIN, J. This is an action of ejectment, brought to recover possession ofa certain mining claim, known as the "Prospectus claim or mine, containing 1,500 feet along the lode or vein, by 200 feet in width, situate in Esmeralda mining district, Esmeralda county, Nev., together with damages in the sum of $10,000 for ores alleged to have been removed therefrom, and, converted by defendants to their own use. The mining claim is patticularly described in the complaint by metes and bounds, according to the United States official survey thereof. The plaintiff is a corporation, organized under the laws of the ,state of California, and engaged in' mining in said'Esmeralda mining district. The defendants 1lA'8