122 Wis. 66 | Wis. | 1904
1. Two grounds of demurrer are assigned. One is that the complaint does not state facts sufficient to constitute a cause of action. There is no claim that it states a cause of action which would have survived under see. 4253, Stats. 1898. A cause of action which so survives has been held to be a cause of action possessed by the deceased person, and preserved for the benefit of his estate. Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170; Brown v. C. & N. W. R. Co. 102 Wis. 137, 149, 153, 164, 171, 77 N. W. 748, 78 N. W. 771. In the case at baf the plaintiff claims the right to recover under secs. 4255, 4256, Stats. 1898. The mean
“The liability created by sec. 4255, Stats. 1898,'in case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued is for the benefit of certain relatives of the decedent mentioned in sec. 4256, Stats. 1898, and in default of such relatives there is no liability.” Brown v. C. & N. W. R. Co. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771.
In the same case it was held that
“The right of action for an injury to the person which survives under sec. 4253 is separate and distinct from the loss to surviving relatives recoverable under secs. 4255 and 4256.”
See, also, Staeffler v. Menasha W. Co. 111 Wis. 483, 487, 87 N. W. 480; McMillan v. Spider Lake S. M. & L. Co. 115 Wis. 332, 336, 91 N. W. 979. This court has also held, in effect, that the amount recovered in such action constitutes no part of the estate of the deceased, but belongs to and must be paid over to the beneficiaries named in sec. 4256, Stats. 1898. Hubbard v. C. & N. W. R. Co. 104 Wis. 160, 164, 80 N. W. 454. That section of the statute declares that “the amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her.” Sec. 4256.
Here it appears from the complaint that the husband was killed by the “wrongful act, neglect, or default” of the defendant, and that his widow survived him. Had they both been residents and citizens of this state, at the time of his
“The question is not whether the legislature had power to give such right of action, but whether the sections relied upon did give such right of action.”
It was there claimed, and this court, in effect, conceded, that the right to maintain the action had been given by the statutes in general terms, and was broad enough to include aliens. But the logic of the opinion is that this court would not, contrary to the general rule as held in England .and this country, presume that the legislature intended to include
“Our statute was not intended to confer upon nonresident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit.” McMillan v. Spider Lake S. M. & L. Co. 115 Wis. 337; 338, 91 N. W. 979, citing Deni v. Penna. R. Co. 181 Pa. St. 525, 528, 529, 37 Atl. 558.
But can that be truthfully said of the residents and citizens of the several states ? Of course, the several states are bound together with constitutional obligations and restrictions as to each other not existing between them and foreign countries. Among other things, the courts of the several states are constantly giving effect “to the public acts, records, and judicial proceedings” of other states, and to the “privileges and immunities of citizens” of other states, in obedience to constitutional guaranties. Secs. 1, 2, art. IV, Const. of U. S. The right to maintain actions in the courts of this state for personal injuries happening in other states has repeatedly been sanctioned by this court. Curtis v. Bradford, 33 Wis. 190; Eingartner v. Illinois S. Co. 94 Wis. 70, 78, 79, 68 N. W. 664; MacCarthy v. Whitcomb, 110 Wis. 113, 122, 123, 85 N. W. 707; Bain v. N. P. R. Co. 120 Wis. 412, 98 N. W. 241, 242, 244. In this last case the plaintiff’s intestate, while a resident and citizen of Douglas county, Wisconsin, and while in the employ of the defendant, was killed in Minnesota by the alleged negligence of the defendant; and it was held that the action was maintainable in a court of this state by the widow, who had been appointed adminis-tratrix by the county court of Douglas county, notwithstanding the right of action was given by the statutes of Minnesota. Such ruling is in harmony with the decisions of the supreme court of the United States. Thus it has been held by that court:
*72 “A cause of action founded, upon a statute of one state conferring the right to recover damages for an injury resulting in death may be enforced in a court of the United States sitting in another state if it is not inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced.” Texas & P. R. Co. v. Cox, 145 U. S. 593, 604-606, 12 Sup. Ct. 905.
In that case Mrs. Cox brought the action in a federal court in Texas for the death of her husband, caused by the alleged negligence of the company in Louisiana, under a statute of that state giving the right of action. To the same effect, Northern P. R. Co. v. Babcock, 154 U. S. 190, 197, 198, 14 Sup. Ct. 978; Stewart v. B. & O. R. Co. 168 U. S. 445, 18 Sup. Ct. 105. These cases hold that Lord Campbell’s act and similar statutes are not penal in their nature, but merely authorize a civil action to recover damages for a civil injury. As held in the last case cited, the purpose of such statutes “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.” Here there is no attempt to enforce a right of action under a statute of any other state. On the contrary, the plaintiff is here seeking to enforce, in the courts of this state, a right of action which she claims to have been created by and given to her by the statutes of this state. Certainly, the maintenance of such an action by a resident and citizen of another state is not inconsistent with any statute of this state, nor contrary to the public policy of this state.
The precise question is whether the plaintiff, as widow of the deceased, is included in the statute. As indicated, the right of action is given by the statutes in general terms, and
2. The other ground of demurrer is that the plaintiff has not legal capacity to sue. She brings this action in her representative capacity as administratrix of the estate of the deceased, appointed by a court in Michigan. It appears from the complaint that the deceased left no estate in AYisconsin to be administered. We agree with counsel for the appellant that the statute (sec. 3267, Stats. 1898) which authorizes executors or administrators appointed in any other state to prosecute or defend any action or proceeding relating to estates or property in this state is not broad enough to include this action, for the simple reason that the cause of action here sued upon is no part of the estate of the deceased husband, and that, if a recovery should be had, the money would belong to the widow and not the estate. Nevertheless, we are constrained to hold that the widow has the right to bring this action in her representative capacity as such administratrix. AYe base this conclusion upon the wording of the statute, which declares that “every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered shall belong and be paid over to’ the husband or widow of such deceased person, if such relative survive him or her.” Sec. 4256, Stats. 1898. That section and the section immediately preceding created a new right of action, and imposed upon such personal representative a new duty. It appears from the complaint that a duly authenticated copy of the original letters of administration on the estate of the deceased, granted to the plaintiff by the probate court of Kent county, Michigan, was duly Sled
The suggestion that, because the plaintiff was not appointed such representative in this state, she therefore is not amenable to the courts of this state, and hence might divert the amount recovered without being answerable therefor, is without merit. In that regard it is enough to say that as such personal representative she is answerable to the courts of Michigan, where it may be assumed the rights of the beneficiary will be protected. Besides, in this case the beneficiary and such personal representative is the same person, and hence there is no danger of such diversion. We must hold that the action is maintainable in the name of the plaintiff as such personal representative.
By the Court. — The order of the circuit court is affirmed.