36 Ind. App. 34 | Ind. Ct. App. | 1905
Action for damages on-account of the death of Thomas Holmes, which it is alleged occurred through appellant’s negligence.
The primary question for decision, presented by the assignment of error that the court erred in overruling appellant’s motion for a new trial, is whether such action lies when t]ie beneficiaries designated by the statute are aliens, ■as the evidence discloses that the next of kin were. The question does not seem to have been decided in Indiana, and there is a hopeless conflict of authority in other states.
The purpose of this legislation was to provide for some pecuniary compensation to be made by one person for taking the life of another, which, before this enactment, he could not have been required to make. The right to maintain the action is vested in the personal representatives of the deceased. Had the provision gone no further, the fund recovered would have been simply assets of the estate to be disposed of as other assets. The legislature, having the right to-determine what disposition should he made of the fund, charged it with the express trust that it must inure to the benefit of the widow and children, if any, first, and, if no widow or children, 'then to the next of kin. Jeffersonville, etc., R. Co. v. Hendricks (1872), 41 Ind. 48, 74; Memphis, etc., Packet Co. v. Pikey (1895), 142 Ind. 304, 311. The action is brought by the administrator in his representative capacity. Clore v. McIntire (1889), 120 Ind. 262, 264.
The statute is broad and inclusive in terms. No exception is made where the beneficiaries named are aliens. To deny the action because the widow, children or next of kin are aliens and nonresidents is to incorporate into it a restriction which it does not contain. Bonthron v. Phoenix Light, etc., Co. (1903) (Ariz.), 71 Pac. 941, 61 L. R. A. 563; Tanas v. Municipal Gas Co. (1903), 84 N. Y. Supp. 1053, 1059.
In the case of Jeffersonville, etc., R. Co. v. Hendricks, supra, where the decedent and the administrator were both residents and citizens of Kentucky, and the contention was that the statute applied exclusively to residents of Indiana, the Supreme Court held that the language of the act was so clear and explicit that the question could not arise; that the only condition imposed by the legislature which must exist as a prerequisite to the maintenance of the action is that the decedent might have maintained one himself had he lived, and said, at page 71: “They [the legislature] have not said that the right shall exist only in cases where the deceased was, at the time of his death, a resident or citizen of Indiana; but, given the fact that the death of one has been caused by the wrongful act or omission of another, they leave for the courts solely the inquiry whether, had the injury not been fatal, the injured party could himself have recovered therefor. The above section of the code does not limit the remedy provided for causing the wrongful death of another to resident citizens of this State, and we possess no power to thus limit the operation of the section.”
The point that mutatis mutandis the action here prosecuted would not lie in England because of the alienage of the plaintiff is based upon the judgment of Mr. Justice Darling in the case of Adam v. British & Foreign Steam Ship Co. [1898], 2 Q. B. 430. In that case the learned judge said: “But it is a principle of our law that acts of parliament do not apply to aliens, at least if they be not even temporarily resident in this country, unless the language of the statute expressly refers to them.” In the case then being considered the mother of a Belgian alien was seeking to recover damages for his death, caused by a collision on the high seas between the Belgian ship, upon which the deceased was employed, and a British ship, through the negligence of the latter. In giving his judgment the justice said: “Now, I ask, is there anything in Lord Campbell’s act to show that it was intended to apply for the benefit of foreigners not resident in this kingdom? * * * I see no implied, and certainly no express, intention to give to foreigners out of the jurisdiction a right of action which even British subjects had not until the passing of 9 and 10 Viet.,'c. 93. Moreover, that statute'provides, in s. 2, for the division of the damages recovered amongst the various persons to be benefited in proportions to be assessed by the jury. It appears to me impossible to hold that it was intended, there being no expression to that effect, to cast upon juries such a duty as this in regard to the distant family of a deceased, and possibly polygamous, alien.”
The effect of this judgment is to establish a precedent that, where an alien is out of the jurisdiction at the time
The case, however, is very different where the alien is within the jurisdiction when the accident occurred. The test of the question is the jurisdiction of the court. In The Zolverein (1856), 2 Jur. (N. S.) 429, Dr. Lushington said: “The.power of this country is to legislate for its own subjects all over the world, and as to foreigners within its jurisdiction, but no further.” The same view is expressed by Lord Esher in Colquhoun v. Heddon (1890), 25 Q. B. D. 129, 135, and Jervis, C. J., in Jefferys v. Boosey (1853), 4 H. L. C. *815, *946.
The recent case of Davidsson v. Hill [1901], 2 K. B. 606, reviews many authorities, and directly holds that under Lord Campbell’s act an action will lie against a British subject for negligently causing the death of a person within England, his next of kin being aliens.
The facts disclosed by the affidavit lead to the irresistible inference that appellants knew, or ought to have known, of the alleged misconduct prior to the rendition of the verdict.
Decedent was sitting on the seat box in the cab of one of appellant’s engines, which was running backwards, at the time of his death. A box-car had been placed on an adjacent track so near to the one over which the engine was being run that the cab of the latter struck it in passing. It was shown that such car should have been placed at least a sufficient distance away to clear a man on the outside of a freight-car. The night was dark. The engineer did not see the interfering car until it was in contact with the cab. There was another man — the fireman — on the seat with the deceased. The fireman was facing the way the engine was moving. The decedent had the position from which the outlook ahead of the engine is ordinarily kept. A switch-engine was moving on the tracks. The fireman did not discover the interfering car before the engine.
The jury, in answers to interrogatories, finds that decedent’s head was out of the window of the cab at the time of and immediately before the collision. It also finds, in answer to other interrogatories, that it was not light enough to enable him to see the car if he had been looking at the time of and just before the accident; that there were not sufficient lights in the yard to enable him to do so. The facts thus stated accord with evidence in the case.
The instructions, taken together, fully and fairly presented the issue. The substance of the requests which were refused is contained in those which were given.
Judgment affirmed.