128 F. 191 | U.S. Circuit Court for the Northern District of Illnois | 1904
This cause comes on to be heard upon the motion of defendant that the cause stand dismissed as of November 28, 1903, upon the following state of facts : The suit was instituted by the administrator of Rouis Al. Niman, deceased, formerly a citizen of Illinois, to recover $35,000 for negligence of the defendant which resulted in causing the death of plaintiff’s decedent at Glenwood, Pa. There is sufficient in the pleadings to disclose the fact that plaintiff sought to recover under the statute of Pennsylvania, where the accident occurred, which statute does not limit the amount to be recovered to any arbitrary sum. Heretofore, following the decision of the Pennsylvania court in Books, Adm’r, etc., v. Borough of Danville, 95 Pa. 158, this court sustained a demurrer to the declaration on the ground that the right of action under the Pennsylvania statute vested only in the widow, in the facts of this case. Whereupon, by leave of court, the plaintiff, Reman, on November 28, 1903, amended the decla
The suit was properly brought in this court, being a transitory cause of action. Dennick v. R. Co., 103 U. S. 11, 26 L. Ed. 439; Shedd v. Moran, 10 Ill. App. 618; Steamship Co. v. Kane, 170 U. S. 112, 18 Sup. Ct. 526, 42 L. Ed. 964; Hanna v. Grand Trunk R. Co., 41 Ill. App. 116; Stewart v. B. & O. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. It was properly based on the Pennsylvania statute, and the proceeds of such a suit would be distributed by the courts of Illinois and this court accoi’ding to the Pennsylvafiia statute, and the remedy must be under the Pennsylvania statute. Same cases. The Illinois statute applies only as showing that a foreign statute is not against the policy of our law. Same cases.
The contention of defendant that changing the party plaintiff from the administrator of the decedent to his widow, in order to conform to the Pennsylvania statute, works a discontinuance of the suit, is not sustained by the authoiities. The suit of the administrator was for the benefit of the widow and children of decedent. It cannot be said that the change set up a new cause of action. She was a real party in interest, and federal courts look rather to real than to nominal parties. Stewart v. B. & O., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537, and cases cited. The Supreme Court of Illinois has held the contrary to defendant’s contention in Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, and Litchfield Coal Co. v. Taylor, 81 Ill. 590. In the former case the court permitted the heirs to be substituted for an administrator in a suit upon an insui'ance policy; and in the latter, a widow, who had sued, in the capacity of administratrix, for the death of her husband, under the statute entitled “Miners,” was permitted to amend by substituting herself as widow in place of administratrix. In the case of Zukowski v. Armour, supra, the amendment created a new cause of action. It
The claim that it is the administrator who is attempting to substitute, and not the party to be substituted, might, perhaps, be raised on demurrer, but would not furnish a basis for the motion now made.
The motion to declare the cause discontinued as of the date of the amendment is denied.