98 Mass. 85 | Mass. | 1867
The court are all of opinion that this action cannot be maintained, and that the demurrer must prevail.
There is great difficulty in ascertaining what cause of action this plaintiff has against the defendants, or how she acquired any. By the common law, and by the laws of this Commonwealth, no action could be brought against the railroad company for negligently causing the death of the plaintiff’s intestate. This is conceded; and the plaintiff rests her case wholly on the statute of New York. If this be a penal statute, it cannot be enforced beyond the territory in and for which it was enacted. If it gives a new and peculiar system of remedy, by which rights of action are transferred from one person to another in a mode which the common law does not recognize, and which is not in conformity with the laws or practice of this Commonwealth, there is an equally insuperable objection to pursuing such a remedy in our courts.
The plaintiff’s counsel, in their ingenious and impressive argument, being apparently fully aware of the difficulties of the case, have placed their claim to recover upon the ground that the statute of New York vested a right of property in the widow and her children at the moment of the husband’s death, and designated a trustee to receive and enforce this right, whose capacity to sue will be sustained in any forum.
The right of property which the statute defines is of a very peculiar nature. In the first place, the act or default which caused the death must be such as would, if death had not
If we understand that the limitation of the defendants’ responsibility to cases in which the deceased would have had a right of action if he had survived, is not intended to make his right of action survive to his representatives, but is only meant to define and describe the cases in which the right of property and of action is recognized in the widow or next of kin, we have still the question to meet, How can that be regarded as any thing else than a statute penalty, which the personal representative of the deceased is to recover by an action; which is limited in amount, although that amount may be much less than the extent of the injury sustained by those whose loss is to be estimated in computing it; and which is to be distributed among the parties entitled to receive it, not in proportion to the injuries which they have respectively sustained, but in proportion to the shares to which they would be severally entitled in the distribution of an intestate estate ? We do not readily find a satisfactory answer to this question. But a complete and decisive objection to the maintenance of o the action by this plaintiff remains.
The plaintiff is the administratrix appointed under the law of Massachusetts Her right to sue in this Commonwealth, in her representative capacity, is upon causes of action which accrued to her intestate, or which grow out of his rights of property, or those of his creditors. The remedy which the statute of New York gives to the personal representatives of the deceased, as trustees of a right of property in the widow and
For the reason, therefore, that the right of action which the New York statute gives to the personal representative of the deceased in that state is not a right of property passing as assets of the deceased, but is a specific power to sue created by their local law, it does not pass to the plaintiff as administratrix in Massachusetts, and this suit cannot be maintained by her.
Demurrer sustained.
The case of Woodard v. Michigan Southern and Northern Indiana Railroad Company, 10 Ohio State, 121, which was. an action on the statute of Illinois by an administrator appointed in Ohio, was decided on grounds similar to those of the foregoing decision ; though it is to be observed that in that case the deceased was a servant of the railroad company, and the collision which killed him was caused by the negligence of other servants of the same, and there was no allegation that under such circumstances an action would lie in Illinois, the statute giving the action only when the default, &c. “ is such as would, if death had not ensued, have entitled the party injured to maintain an ac> non,” &<;.