The Supreme Court of the District of Columbia has jurisdiction
of an action, sounding in tort, brought by the administrator of a
deceased person against the Baltimore and Ohio Railroad Company to
recover damages for the benefit of the widow of the deceased by
reason of his being killed by a collision which took place while he
was traveling on that railroad in the Maryland.
The purpose of the several statutes passed in the states in more
or less conformity to what is known as Lord Campbell's Act, is to
provide the means for recovering the damages caused by that which
is in its nature a tort, and where such a statute simply takes away
a common law obstacle to a recovery for the tort, an action for
that tort can be maintained in any state in which that common law
obstacle has been removed when the statute of the state in which
the cause of action arose is not, in substance, inconsistent with
the statutes or public policy of the state in which the right of
action is sought to be enforced.
While under the Maryland statute authorizing the survival of the
right of action, the state is the proper plaintiff and the jury
trying the cause is to apportion the damages recovered, and under
the act of Congress in force in the District of Columbia, the
proper plaintiff is the personal representative of the deceased,
and the damages recovered are distributed by law, these differences
are not sufficient to render the statutes of Maryland inconsistent
with the act of Congress or the public policy of the District of
Columbia.
On October 22, 1894, plaintiff in error, as plaintiff, filed in
the Supreme Court of the District of Columbia an amended
declaration, containing two counts. The first alleged that John
Andrew Casey, plaintiff's intestate, was killed through the
negligence of the defendant company, in the State of Maryland; that
said intestate left surviving no parent or child, but only his
wife, Alice Triplett Casey, for whose benefit this action was
brought. The second count set forth, in addition to the matters
disclosed in the first, a statute of the State of Maryland in
respect to recovery in such cases. A demurrer
Page 168 U. S. 446
to this declaration was sustained, and judgment entered for
defendant. This was affirmed by the Court of Appeals of the
District of Columbia (6 App.D.C. 56), and from such judgment of
affirmance plaintiff has brought the case here on error.
The statute in force in the District of Columbia, Act of
February 17, 1885, c. 126, 23 Stat. 307, provides for recovery in
case the act causing death is done within the limits of the
District of Columbia, that
"the person who or corporation which would have been liable if
death had not ensued shall be liable to an action for damages for
such death, notwithstanding the death of the person injured,"
that the recovery shall not exceed $10,000, that the action
shall be brought in the name of the personal representative of the
deceased, and within one year after his death, and that the damages
recovered shall not be appropriated to the payment of the debts of
the deceased, but inure to the benefit of his or her family, and be
distributed according to the provisions of the statute of
distributions. The Maryland statute which is copied in the
declaration, Rev.Code Maryland 1878, p. 724, provides, in the first
section that whenever the death of a person shall be caused by the
wrongful act, negligence, etc., of another, "the person who would
have been liable if death had not ensued, shall be liable to an
action for damages." Section 2 and 3 are as follows:
"SEC. 2. Every such action shall be for the benefit of the wife,
husband, parent and child of the person whose death shall have been
so caused, and shall be brought by and in the name of the State of
Maryland, for the use of the person entitled to damages, and in
every such action the jury may give such damages as they may think
proportioned to the injury resulting from such death to the parties
respectively for whom and for whose benefit such action shall be
brought, and the amount so recovered, after deducting the costs not
recovered from the defendant, shall be divided amongst the
above-mentioned parties in such shares as the jury by their verdict
shall find and direct,
provided that not more than one
action shall lie for and in respect of the same subject matter of
complaint, and that every such action shall be commenced
Page 168 U. S. 447
within twelve calendar months after the death of the deceased
person."
"SEC. 3. In every such action, the equitable plaintiff on the
record shall be required, together with the declaration, to deliver
to the defendant, or his attorney, a full particular of the persons
for whom and on whose behalf such action shall be brought, and of
the nature of the claim in respect of which damages shall be sought
to be recovered."
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The Court of Appeals was of opinion that the action could not be
maintained under the statute of the District of Columbia, because
that authorizes recovery only in case the injury causing death is
done within the limits of the District, nor under the Maryland
statute, because of the peculiar form of remedy prescribed therein;
citing, in support of the latter contention,
Pollard v.
Bailey, 20 Wall. 520. A statute of Alabama made
stockholders of a bank individually liable for its debts, and,
according to the construction given to it by the supreme court of
the state, the remedy provided was a suit in equity, whereas in
that case, a single creditor had sued one of the stockholders in an
action at law, and, in denying the right to maintain such action,
this Court observed, page
87 U. S.
526:
"The individual liability of stockholders in a corporation for
the payment of its debts is always a creature of statute. At common
law, it does not exist. The statute which creates it may also
declare the purposes of its creation, and provide for the manner of
its enforcement. . . . The liability and the remedy were created by
the same statute. This being so, the remedy provided is exclusive
of all others. A general liability created by statute without a
remedy may be enforced
Page 168 U. S. 448
by an appropriate common law action. But where the provision for
the liability is coupled with a provision for a special remedy,
that remedy, and that alone, must be employed."
To like effect was cited
Fourth National Bank v.
Francklyn, 120 U. S. 747. The
Court of Appeals was of opinion that the statute in Maryland not
only created a statutory liability, but prescribed a particular
remedy, and that no action could be maintained either in Maryland
or elsewhere unless that special remedy was pursued.
Notwithstanding the ability with which the arguments in support
of this conclusion are presented in the opinion of the Court of
Appeals, we are unable to concur therein. A negligent act causing
death is, in itself, a tort, and, were it not for the rule founded
on the maxim,
actio personalis moritur cum persona,
damages therefor could have been recovered in an action at common
law. The case differs in this important feature from those in which
a penalty is imposed for an act, in itself not wrongful, in which a
purely statutory delict is created. The purpose of the several
statutes passed in the states in more or less conformity to what is
known as "Lord Campbell's Act" is to provide the means for
recovering the damages caused by that which is essentially and in
its nature a tort. Such statutes are not penal, but remedial, for
the benefit of the persons injured by the death. An action to
recover damages for a tort is not local, but transitory, and can,
as a general rule, be maintained wherever the wrongdoer can be
found.
Dennick v. Railroad Company, 103 U. S.
11. It may well be that, where a purely statutory right
is created, the special remedy provided by the statute for the
enforcement of that right must be pursued; but where the statute
simply takes away a common law obstacle to a recovery for an
admitted tort, it would seem not unreasonable to hold that an
action for that tort can be maintained in any state in which that
common law obstacle has been removed. At least it has been held by
this Court in repeated cases that an action for such a tort can be
maintained
"where the statute of the state in which the cause of action
arose is not in substance inconsistent with the statutes or public
policy of the state in which
Page 168 U. S. 449
the right of action is sought to be enforced."
Texas & Pacific Railway v. Cox, 145 U.
S. 593,
145 U. S. 605.
See also Dennick v. Railroad Company, 103 U. S.
11;
Huntington v. Attrill, 146 U.
S. 657;
Northern Pacific Railroad v. Babcock,
154 U. S. 190.
What are the differences between the two statutes? As heretofore
noticed, the substantial purpose of these various statutes is to do
away with the obstacle to a recovery caused by the death of the
party injured. Both statutes in the case at bar disclose that
purpose. By each, the death of the party injured ceases to relieve
the wrongdoer from liability for damages caused by the death, and
this is its main purpose and effect. The two statutes differ as to
the party in whose name the suit is to be brought. In Maryland, the
plaintiff is the state; in this district, the personal
representative of the deceased. But neither the state in the one
case nor the personal representative in the other has any pecuniary
interest in the recovery. Each is simply a nominal plaintiff. While
in the District the nominal plaintiff is the personal
representative of the deceased, the damages recovered do not become
part of the assets of the estate, or liable for the debts of the
deceased, but are distributed among certain of his heirs. By
neither statute is there any thought of increasing the volume of
the deceased's estate, but in each it is the award to certain
prescribed heirs of the damages resulting to them from the taking
away of their relative.
For purposes of jurisdiction in the federal courts, regard is
had to the real, rather than to the nominal, party.
Brown v.
Strode, 5 Cranch 303;
McNutt v. Bland,
2 How. 9;
State of Maryland for use of Markley v. Baldwin,
112 U. S. 490.
See also Gaither v. Farmers' &
Mechanics' Bank of Georgetown, 1 Pet. 37,
26 U. S. 42, in
which the issue submitted to the jury was, as stated, one between
the bank to the use of Thomas Corcorran, plaintiff, and Gaither,
the defendant, upon which the Court said:
"This practice is familiar with the Maryland courts, and, when
the action originates in that form, the
cestui que use is
regarded as the real party to the suit."
It is true those were actions on contract, and this is an action
for a tort,
Page 168 U. S. 450
but still in such an action it is evident that the real party in
interest is not the nominal plaintiff, but the party for whose
benefit the recovery is sought, and the courts of either
jurisdiction will see that the damages awarded pass to such
party.
Another difference is that, by the Maryland statute, the jury
trying the cause apportion the damages awarded between the parties
for whose benefit the action is brought, while by the statute of
the District, the distribution is made according to the ordinary
laws of distribution of a decedent's estate. But by each, the
important matter is the award of damages, and the manner of
distribution is a minor consideration. Besides, in determining the
amount of the recovery, the jury must necessarily consider the
damages which each beneficiary has sustained by reason of the
death. By neither statute is a fixed sum to be given as a penalty
for the wrong, but in each the question is the amount of damages.
It is true that the beneficiaries of such an action may not in
every case be exactly the same under each statute, but the
principal beneficiaries under each are the near relatives -- those
most likely to be dependent on the party killed -- and the remote
relatives can seldom, if ever, be regarded as suffering loss from
the death.
We cannot think that these differences are sufficient to render
the statute of Maryland in substance inconsistent with the statute
or public policy of the District of Columbia, and so, within the
rule heretofore announced in this Court, it must be held that the
plaintiff was entitled to maintain this action in the courts of the
District for the benefit of the persons designated in the statute
of Maryland. The judgment will be
Reversed, and the case remanded for a trial upon the
merits.
