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other differences, the statutes differ in respect to the limit of recovery, some fixing one limit, some another, and some no limit. To the wife and children of a man killed in a railway accident on a journey from San Francisco to New York it would be a matter of grave concern, affecting vitally the extent of their redress, in which one of the dozen or more states on the line of travel the accident occurred.
The conflicting and often crude legislation of the fortyeight states upon this important subject presents a forcible argument in favor of a uniform act. The diversity cannot be justified, or explained, by the existence of diverse local needs and conditions; it arose from the fact that by reason of the failure of the courts to entertain jurisdiction over death actions the matter came to be dealt with by forty-eight independent legislative bodies. Some measure of uniformity has been brought about by the recent federal employers' liability act relating to common carriers engaged in interstate commerce, but the field of federal legislation is comparatively small. The drafting of a uniform death act might well be undertaken by the Commissioners on Uniform State Laws. ST. PAUL, MINNESOTA, November 1, 1912.
F. B. T.
PREFACE TO FIRST EDITION
The purpose of this book is to treat of those questions of law which are peculiar to the various statutory civil actions maintainable when the death of a person has been caused by the wrongful act or negligence of another. The statutes by which a right of action in such case has been created are to a great extent modeled upon the English statute known as "Lord Campbell's Act,” which was enacted in 1846. Lord Campbell's act provides that, "whensoever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such
person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured.” The American acts, with some exceptions, have followed the language of the parent act in providing that the action may be maintained whenever death is caused by "wrongful act, neglect, or default." For the sake of brevity, the book has been entitled “Death by Wrongful Act,” though “Death by Wrongful Act or Negligence” would more accurately describe it. This subject, although it has been briefly considered in several text-books, has never been treated with any degree of fullness.
These acts in effect provide that the statutory action may be maintained for the benefit of the persons whom they designate, whenever the wrongful act, neglect, or default is such that if it had resulted merely in bodily injury, without causing death, the person injured might have maintained an action. It is obvious, therefore, that in the statutory action the same
questions in respect to the wrongfulness of the act or the negligence of the defendant must arise that would arise in an action for personal injury founded upon the same wrongful act, neglect, or default. These questions are sufficiently treated in books upon torts, upon personal injuries, and especially upon negligence. It is not the purpose of this book to consider the rules and principles of law upon which the answers to questions of this character depend. Its purpose is simply to treat of those questions which are peculiar to the various statutory actions. In other words, it is, as a rule, assumed that the death was caused under such circumstances that, if death had not ensued, an action might have been maintained by the person injured.
Although most of the acts have been to a great extent modeled upon Lord Campbell's act, and consequently can be considered together, some of the acts are peculiar in whole and many in part; and all these, so far as they are peculiar, require separate treatment. Again, some states, while they have passed acts similar to Lord Campbell's act, have enacted additional provisions granting a right of action when death is caused under particular circumstances; for example, when it is caused by certain kinds of negligence on the part of common carriers, or when the person killed is a minor and leaves a surviving parent. Peculiar provisions of this sort also require separate treatment. It is the plan of the book to consider the peculiarities of the various statutes separately before proceeding to a discussion of the principles common to those of the general type of Lord Campbell's act. The writer has endeavored to cite all the cases that have arisen in the United States and in England under these acts, so far as the decisions relate to matters peculiar to the statutory actions, whether the cases turn upon the special features of particular acts or are of more general applicability. The Canadian cases have also been freely cited. References have been given, in all cases concurrently reported, to the National Reporter System, as well as to the official reports. Whenever it seemed
to the writer that a statement of the facts of the case would be of value, such a statement has been given in the text or in the notes. In determining the effect of a decision, it is of course nec
a essary to have in mind the provisions of the statute under which the action was brought. For this reason the various enactnients * * * have been printed in full in the appendix. An analytical table of these statutes has also been prepared. It is believed that the analytical table will be found of convenience (1) as a ready means of ascertaining the provisions of a particular statute upon a given point, and (2) as a means of ascertaining what statutes have provisions of a similar nature to the statute which may be under consideration. It is believed that the table will be found of especial value in the newer states and territories whose statutes have not yet been construed by the courts. For example, an examination of the table would inform a person wishing to arrive at a proper construction of the many peculiar provisions of the act of New Mexico, which has received little or no construction, or of the act of Colorado, which has received comparatively little, that these acts are nearly identical with that of Missouri, which has been fully construed by the courts of that state, and which is discussed in the text and notes. The table may also be useful to persons interested in legislation upon this subject.
F. B. T.