after stating the case, delivered the opinion of the court.
This аction is brought under provisions of a statute of the Territory of Arizona, copied from a statute of Texas upon thе same subject. Arizona Rev. Stat. of 1887, tit. 36, §§ 2145-2155; Texas Rev. Stat. of 1879, §§ 2899-2908.
By this statute, an action, on account of injuries causing the death of any person, may be brought against a railroad company, or other carrier of goods or passengеrs, for actual damages, when the death is caused by its negligence, or by the unfitness or gross negligence of its servants or agents; and for exemplary damages also, when the death is caused by the wilful act or omission or gross negligence of the defendant. Arizona Rev. Stat. §§ 2145-2147.
The statute provides that “ the action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused;” and “may be brought by аll the parties entitled thereto, or by one or more of them for the benefit of all; ” and that, if they fail to bring it within six months after thе death, “ it shall be the duty of the executor or administrator of the deceased to commence and prosеcute the action, unless requested by all of the parties entitled thereto not to prosecute the same.” §§ 2149-2151.
If thе sole plaintiff dies pending the action, and is the only person entitled to the benefit thereof, the action abates. But if any person so entitled survives, the action does not abate by the death of the plaintiff, but any one or morе of the persons so entitled may be made plaintiff, “and the suit be prosecuted to judgment in the name of such plaintiff, fоr the benefit of the persons entitled.” §§ 2153, 2154.
The statute further provides that “ the jury may give such damages as they may think proportioned to the injury result
The obvious intent and еffect of these provisions is that the action is to be brought once for all; that it is to be prosecuted for the benefit of all the relatives mentioned, the husband oí the wife, the children and the parents, of the deceased; and thаt any damages recovered are to belong to all those relatives, and to be shared among them in the prоportions determined by the verdict of the jury. By the express terms of the statute, the action may be brought by all or any of them, but for the benefit of all; no one or more of them, less than all, can excuse the executor or administrator from bringing and prosecuting the action, if they do not; the action does not abate by the death of the one suing, but may be рrosecuted by the survivors, if there are any; and the damages recovered are to be divided among all of them, in suсh shares as the jury shall fix by their verdict. The authority given for bringing and prosecuting the action, in the name of any one or more of the persons entitled, for the benefit of all, avoids multiplicity of actions, and difficulties arising from nonjoinder of plаintiffs; but it gives the nominal plaintiff or plaintiffs no power to compromise or to release the rights of the other benеficiaries, or to lessen or alter the shares awarded by the jury.
This construction of the statute is in accord with the con struction which, before its passage, had been given by the Supreme Court of Texas to the similar statute of that State.
Houston & Texas Central Railway
v. Bradley,
In the present case, the deceased left a -widow, four children, and a father and mother. The jury returned a verdict fоr the plaintiff for $50,000, of which they awarded $8000 to the widow,
According to the decisions of the Supreme Court of Texas, in Houston &c Texas Central Railway v. Bradley and Galveston &c. Railroad v. Le Gierse, above cited, the widow could not compromise or release the rights even of her own minor children. She certаinly could not release, in whole or in part, the rights of her father in law and mother in law.
The statute, indeed, as has been sеen, creates but a single liability; the matter in controversy, as between the defendant, on the one side, and the plаintiff and the other persons for whose benefit the action is brought, on the other, is the whole amount of the damages found by the jury; and the defendant has no concern in the apportionment of damages among the persons entitled, рrovided that is done as the statute requires. Texas & Pacific Railway v. Gentry, ante, 353.
But the defendant has the right to object to a judgment apportioning the damаges, not as lawfully divided by the jury, but as unlawfully fixed by the plaintiff of record, reducing to nominal damages the sums awarded by the jury to somе of the persons entitled, and thereby leaving the defendant open to the danger of another suit by those persоns to obtain the damages of which the present plaintiff has undertaken to deprive them.
Northern Pacific Railroad
v.
Lewis,
The opinion of the Suprеme Court of the Territory of Arizona, which, as required by section 919 of the Revised Statutes of the Territory, was in writing and recorded, shows that that court not only <c inclined to the view that the jury was prompted, through sympathy for the widow and children, and out оf the enlarged liberality of which juries in such cases are usually possessed, to award damages largely in excess of what the proofs warranted; ” but that it considered that the damages awarded were clearly excessive and that it was
As this сourt now holds the remittitur to have been unauthorized and invalid, the proper order, without considering other questions argued at the bar, will be
Judgment reversed, and case remanded to the Supreme Court of the Territory, with directions to cause the verdict to be set aside and a new trial had.