of interstate law in such cases. And even in New York, in the recent case of Debvoise v. New York, L. E. & W. R. Co.. 98 N. Y. 377, 25 Am. & Eng. R. Cas. 335, it was held that an action by an administrator for damages for the death of his intestate, caused by the negligence of the defendant in another state, could not be maintained in the courts of New York without proof of the existence of a like statute to that of New York in the state where the accident occurred; thus showing that the right of action given by statute for the death of an individual is not transitory, like the common-law right of action for personal injuries, but the operation and force of such statute must be confined to the state enacting it, except where it can be extended by comity. And whether an action would be sustained by the courts of this state for the death of a person occurring in another state, having a statute of the same or like provisions as our own, is a question not presented in this case, and in regard to which we express no opinion.

The plaintiff having entirely failed to show any such state of case or cause of action as would entitle her to recover in a Maryland court, there was no error in taking the case from the jury, and therefore the judgment must be affirmed.

Action for Causing Death-Conflict of Laws.-See McMaster v. Illinois Cent. R. Co. (Miss.), 41 Am. & Eng. R. Cas. 486; Usher v. West Jersey R. Co. (Pa.), 41 Id. 508, note 519, et seq; O'Reilly v. New York & N. E. R. Co. (R. I.), 42 Id. 50.

Who May Maintain Action for Death.-Section 3, chap. 57, Gen. St. Ky., provides as follows: "If the life of any person or persons is lost or destroyed by the wilful neglect of another person or persons, company or companies, corporation or corporations, their agents or servants, then the widow, heir, or personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid." Held, that a father cannot maintain such an action as the heir of his son, who was killed by the wilful neglect of a railroad company. Kentucky Cent. R. Co. v. McGinty, Kentucky Court of Appeals, Oct. 23. 1890.

It has also been held that this section of the Kentucky Statute limits the right of action to the widow and children of the deceased, or to the administrator for their benefit. Cincinnati, N. O. & T. R. Co. v. Adams, Kentucky Court of Appeals, March 20, 1890.

Section 1, chap. 57, Gen. St. Ky., provides that the personal representative of a person not in the employ of a railroad company, and killed by the negligence of its employes may recover damages for such death. Held, that this section gives no right to the administrator of an employe of a railroad company, to recover damages for the negligent killing of such person by said company, although decedent lives two days after the injuries were received. Cincinnati, N. O. & T. R. Co. v. Adams, Kentucky Court of Appeals, March 20, 1890.

Under the Alabama statute giving a right of action to a workman, against his employer, for personal injuries received while in the service, if caused by negligence, and further declaring that, “in case the injury results in death, the heirs at law of the workman shall have the same right of com

pensation and remedies against the employer, as if the workman had not been in his service, nor engaged in his work" (Sess. Acts 1884-5, p. 115); although "heirs at law" may be construed to mean next of kin, and although the amount recovered is made exempt from the payment of the debts of the deceased, the action must be brought in the name of the personal representative. Stewart v. Louisville & Ñ. R. Co., 83 Ala. 493.

A temporary administrator is, for the time being, the "personal representative" of the intestate for the purpose of collecting assets, and so continues until permanent letters are granted. He can maintain an action for the homicide of his intestate, the right to which is conferred by statute upon the "personal representative," under Code Ala. § 2591. Louisville & N. R. Co. v. Chaffin, Georgia Sup. Ct., Oct. 11, 1889.

WEBB

V.

DENVER & RIO GRANDE Western R. Co.

(Utah Supreme Court, July 28, 1890.)

Action for Death-Special Findings.-In an action for the wrongful death of a person it is within the discretion of the court, under § 3374, Comp. Laws, Utah, to refuse to direct special findings of fact.

Same-Damages-Mental Pain and Suffering. In an action for the wrongful death of a person, only the pecuniary loss sustained by the parties for whose benefit the action is brought can be compensated for. No compensation can be given for the mental anguish or suffering of the heirs or next of kin of the deceased; although it is provided by statute (§ 3179, Comp. Laws, Utah), that in such an action, the jury may give such damages as "under all the circumstances of the case may be just."

APPEAL from Third District Court.

Bennett, Marshall & Bradley, (Robert Harkness, of counsel,) for appellant.

J. L. Lawlins, for respondent.

Case stated.

ANDERSON, J.-This is an action against the defendant for negligently causing the death of plaintiff's decedent, a car inspector and repairer in its employ, while engaged in assisting a brakeman in coupling a car that was out of repair to another car, by means of a chain, in order that the broken car might be set out on a side track for repairs. The case was tried before a jury, which rendered a verdict for plaintiff for $4,995. The defendant moved for a new trial, which was overruled, and it appealed from the order overruling the motion, and from the judgment. At the trial, counsel for defendant requested the court to instruct the jury to make special findings on certain questions of fact, which the court refused to do, and this Special flndrefusal is assigned as error. Section 3374, 2 Comp. Laws 1888, provides that, "in an action for the recovery of

ings,

Instructions

money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon." It was within the discretion of the court, whether it would direct the jury to make special findings or not, and it was not error to refuse to do so. The court gave to the jury the following instruction: as to damages. “(10) If the jury find in favor of the plaintiff, such damages may be given as, under all the circumstances of the case, may be just, not exceeding the amount claimed in the complaint." It is contended that this instruction is too general, and should have stated the rule as to the measure of damages more explicitly. Excepting the last clause, the instruction is in almost the exact language of the statute. But whether it is fairly open to the criticism made or not, the objection urged against it is obviated by the next instruction, it being a familiar rule, that all the instructions given are to be construed together. The next instruction is as follows, to-wit: "(11) In estimating the loss sustained by the plaintiff as administrator and the mother of said deceased, who is his heir, you have a right to take into consideration, not only the pecuniary value of his serviees and support to her during her life, if he had lived, but the social and domestic relations of the parties, their kindly demeanor, or the lack of it, toward each other, the loss which the mother may sustain in being deprived of the society, aid, and care of her son, as well as the mental pain and suffering caused to her by his death, as may appear from the evidence, in estimating what damages under all the circumstances of the case may be just." Counsel for defendant insist that this instruction is erroneous, in so far as it authorizes the jury to take into con sideration the mental pain and suffering caused to the mother of the deceased by his death.

Damages recoverable

At the common law the right of action for a personal injury, whether it produced death or not, was terminated by the death of the injured party. Broom, Leg. Max. 400, 401 Whit. Smith, Neg. 430; 3 Suth. Dam. 281 Shear. & R. Neg. $ 124. But in England Mental suffer- this rule was abolished in 1846, by what is commonly called Lord Campbell's Act," (9 & 10 Vict. chap. 93,) and which has been adopted in substance by most of the states of this Union, as well as by this territory. 2 Comp. Laws 1888, § 2961, 2962. This statute was adopted in this territory in 1874, and provides that an action may be

ing.

66

California

cases.

maintained against any person or corporation whose wrongful act or neglect has caused the death of any person, notwithstanding the death of the injured person, if the injured party could have maintained an action for damages in respect thereof if death had not ensued; and that every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and the amount recovered shall be distributed by the probate court to the heirs of the decedent to the exclusion of creditors, and that the amount of damages so recovered shall not in any case exceed the sum of $10,000. By $$ 3178 and 3179, Comp. Laws 1888, adopted in 1884, it is provided that such an action may be maintained for the death of a minor by the parent or guardian, and for the death of one not a minor by his heirs or personal representatives, and that in such action, " such damages may be given as under all the circumstances of the case may be just." Under a statute similar to the one last referred to, it has been held in California, in an action by a father for the death of his daughter, that it was proper for the jury to consider, in determining the amount of his recovery, his mental anguish and suffering for the loss of his child. Cleary v. City R. Co., 76 Cal. 240. The court gives no reason for so holding, aside from the wording of the statute, but contents itself by referring to Beeson v. Green Mountain Gold Min. Co., 57 Cal. 20; Cook v. Clay Street Hill R. Co., 60 Cal. 604, 6 Am. & Eng. R. Cas. 175; and Nehrbas v. Central Fac. R. Co., 62 Cal. 320, 14 Am. & Eng. R. Cas. 670. But in neither of these cases was the point directly raised. In the case in 62 Cal., which was an action by a father for the negligent killing of five of his minor children, the jury gave a verdict for $10,800, and the court, in refusing to set aside the verdict as excessive, said that the jury was not "limited to the actual pecuniary injury sustained by the plaintiff by reason of the loss of the services of his children," but nothing was said anywhere in the case about the mental anguish and suffering of the father being a proper element of damage. The case in 60 Cal. was an action by the wife as administratrix for the death of her husband caused by the negligence of the defendant. The plaintiff and her daughter were permitted to testify against the objections of defendant that the deceased was a kind and attentive husband and father, and that his social and domestic relations were happy. But no proof was offered of the mental anguish of the widow or family, nor were any damages given on that ground. The court held that it was proper to show the domestic relations of the parties, their kindly demeanor to each other, etc. The fore

going cases decided by the California courts are all based on the case of Beeson v. Green Mountain Gold Min. Co., 57 Cal. 20. That was a case where the wife sued for the death of her husband, caused by the negligence of the defendant. Evidence was offered as to the social and domestic relations of the plaintiff and her deceased husband, and the lower court instructed the jury that they might consider the pecuniary loss, if any, the plaintiff had suffered in the death of her husband by being deprived of his support; "also the relations proved as existing between plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society." The latter part of the instruction was objected to, but the supreme court sustained it. Nothing was claimed, however, for mental anguish of the plaintiff, and the court intimated that it would not be allowable. The court say: "We think that the social and domestic relations of the parties, their kindly demeanor toward each other, the society, were parts of all the circumstances of the case,' for the jury to take into consideration in estimating what damages would be just, from a pecuniary point of view, especially as there is nothing in the case to show that the jury were instructed that they might give damages by way of solace." We think. therefore, the case of Cleary v. Railroad Co., supra, is not sustained by the other California cases cited to support it. The only other state in which it has been held that the mental suffering of the survivor may be taken into consideration in assessing damages in such cases is Virginia. Matthews v. Warner, 29 Gratt. (Va.) 570. The court in that case say: "The certificate of facts shows that Warner was shot and killed by Matthews under circumstances which, if not such as the law declares to be murder in the second degree, or, at the very least, voluntary manslaughter, certainly must be held to be a wrongful act." The statute in that state provides that "the jury in any such action may award such damages as to it may seem fair and just," etc. The lower court was requested to instruct the jury that if they found for the plaintiff the measure of damages would be the pecuniary loss sustained by the mother of plaintiff's intestate by reason of the death of her son, and that they must confine themselves to injuries of which a pecuniary estimate could be made in reference to a reasonable expectation of pecuniary benefit to his mother from the continuance of the life of the deceased. and that they could not take into consideration the mental suffering occasioned by his death to his mother. The court refused to give the instruction, and a verdict being rendered against the defendant, he appealed, and the supreme court

Rule in Virginia.