Stewart v. Baltimore & O. Railroad Company

On October 22, 1894, plaintiff in error, as plaintiff, filed in the supreme court of the District of Columbia an amended declaration, containing two counts. The first alleged that John Andrew Casey, plaintiff's intestate, was killed through the negligence of the defendant company, in the state of Maryland; that said intestate left surviving no parent or child, but only his wife, Alice Triplett Casey, for whose benefit this action was brought. The second count set forth, in addition to the matters disclosed in the first, a statute of the state of Maryland in respect to recovery in such cases. A demurrer to this declaration was sustained, and judgment entered for defendant. This was affirmed by the court of appeals of the District of Columbia (6 App. D. C. 56), and from such judgment of affirmance plaintiff has brought the case here on error.

The statute in force in the District of Columbia (23 Stat. 307) provides for recovery in case the act causing death is done within the limits of the District of Columbia; that 'the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured'; that the recovery shall not exceed $10,000; that the action shall be brought in the name of the personal representative of the deceased, and within one year after his death; and that the damages recovered shall not be appropriated to the payment of the debts of the deceased, but inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions. The Maryland statute which is copied in the declaration (Rev. Code Md. 1878, p. 724) provides, in the first section, that whenever the death of a person shall be caused by the wrongful act, negligence, etc., of another, 'the person who would have been liable if death had not ensued, shall be liable to an action for damages.' Section 2 and 3 are as follows:

'Sec. 2. Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall be brought by and in the name of the state of Maryland, for the use of the person entitled to damages, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties, in such shares as the jury by their verdict shall find and direct: provided, that not more than one action shall lie for and in respect of the same subject-matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of the deceased person.

'Sec. 3. In every such action, the equitable plaintiff on the record shall be required, together with the declaration, to deliver to the defendant, or his attorney, a full particular of the persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered.'

Edwin Sutherland, for plaintiff in error.

George E. Hamilton, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.