938 '

, 95

FEDERAI,., REPORTER.

periqd¢ J2 months from noon day of its da to noon of day oiits expiration was loss of life sUIIlpaYilole to his widow. on proof that the assured at anytime arter the date of the policy, apd before its expiration, shOlfld'f:justainpersonaUnjury caused by any accident, and. that such should occasion, death within 90 days from the happening thereof. By an accident which happened at 90'clpck in the forenoon, the assured sustained personal injuries which occasioned his, death about the same hour on the ninety·first day thereafter, excluding the day of date of the accid,entfr,om the computation, the whole, period being within the 12, monthl:\., It was held that by 'no method of computation of time could tM death be regarded as occurring within 90 days from the happening of the accident, and therefore plaintiff could hOt recover; also, that the clause limiting the liability of the insurers to the occurrence of death from the injuries within 90 days from thehlWpening of the;:tccident was not inconsistent with the provision by which the insurance was expressed. to be "for the period of 12 months"; nor could it be construed to refer only to such injuries as should occasion death Within 90 days after the 12 months. Article 1176 of the Oode; provides that:
"When an obligation has :beenr:(wntracted on condition that an event shall happen. within a limited time" tPe condition, is conSidered ,as broken when the tim,e has, expiJ;ed without the event having taken place." ,

There is nothing in the. prinCiples of the common law, or in the policy ofthestatute law! joHhis country, for the .application of a different rule for the interpretation of ;such a ,contract ,when its, terms arereaso;nable,! clear, and unambiguous. TouUier, in counqent· ing UPOn 'this article of the, Code Napoleon,' says: "
"Ifdoubtlil may arise as to the: manner in which 'a condition, should, be accomplished,' there can b,e none, as to the timellt' whIch :it ought to be so wben , it is. fixe,d by the d\les of the partIeI'! s,hould be ascertamed; the law of t:l\econtractmllst govern.' The COde, haS not left to judges the p6wer to evade its effect by int'erpretalionS whIch: is might become arbitrary. 'l'he: dell1y is fata.l, and that general, - :Yeatman applicable: to;aJIkinds of conditions, protestative,casual' v. Broadwell, 1 La. Ann. 424. '

It 'folldWEI'that, the plaintiff cannot I'ecover upondhe contvact in suit, and'a jUdgment' must be entered in favor of the defendant.
q "

T

1;.<

":,

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.. ii'

PAC. RY. dO. (CircUit Court, b ....Washingtori; E': DJ' AuguHti;7, 1899.) ,.
WMNGFUL FOR LIMITATION OF LIAilttITY.,

, The statutes of Washington and Idaho, 'Which In that respect are similar, , and provide: that, when: of a person is caused, by the wrongful another, l).is representatives may ,act ,or ,maintaip. an ,action for damages ,againsUhe person causing the death, ere-, 'ate a new cause of action,' in favor of 'the' beneficiary named, to recover compensation for theIr own loss,illdependent of any right 'of action which the deceased, may have had to reCoYel: fOl:' the Injury had he survl'Ved; and llontract' between a ,l;a\lJ,'Qadcompap.y: and a" passenger by

"

,

"

ADAMS V. NORTHERN PAC.

Ry.

CO.

939

which the In consideraiion of free transpottation, llgreed that the company should not be liable for any personal injury received by him, whether from negligence or otherwise, constitutes no defense to an action by the widow and child of such passenger, under the statute of either state, to recover damages for his deatb, alleged to have caused by the company's negligence.

This' is an action to recover damages for wrongful death. on demurrer to answer. Voorhees & Voorhees, for plaintiffs. Stephens & Bunn, for defendant.

Heard

HANFORD, District Judge. This is an action by the widow and son of Jay H. Adams, deceased, to recover damages for the injury which they have suffered by his death.}Ir. Adams fell or was' thrown from the platform between cars of a train on which he was traveling as a passenger from Hope, in the state of Idaho, to Spokane, sustaining injuries causing his death; and the complaint charges that the mishap was due to negligence on the part of the defendant in the improper construction of the cars, and carelessness in operating the train. The defendant has filed an answer setting forth several g-rounds of defense, in which it pleads, as its third affirmative defense, "that the said Jay H. Adams paid defendant nothing for his transportation, but was 'being canied upon a free pass, and that said Jay H. Adams, as a conditIon of such free carriage, had contracted with said defendant that said defendant should not be liable for any injury' to the person of said Jay H. Adams, or for any loss or damage to his property, under any circumstances, whether of negligence of defendant's agents or otherwise"; and the case has been argued and submitted upon a demurrer to said defense. The attorneys for the defendant, in their argument upon the demurrer, make the following points:
"In the interpretation of a contract limiting liability of carrier, as to its validity and eff("ct the lex loci contractus must control. >10 >10 * This rule certainly must prevail in a case where plaintiff depends entirely for a recovery solely upon the law of the state where such contract was made.. The contract limiting the liability of the defendant railway company in this case was made, pntered into, and cllClivered within the state of 'Vashington,-the state where this suit was brought; and the law of the state of Washington is that, where the passenger is a strictly gratnitous one, recovery cannot be had. See v.. Hailway Co., 7 Wash. 528-532, 35 Pac. 422; Id. (second appeal) 10 Wash. 311-313,38 Pac. 995."

TheIr effort appears to be to treat the case as if it were an action to recover damages for breach of the contract by which the company undertook to carry Mr. Adams as a passenger on its train. But the plaintiffs do not base their demand upon any contract. On the contrary, they complain of a wrong resulting in an injury to them, by deprivation of the support, protection, society, and comfort of theirbusband and father. Their case rests upon the same legal grounds as it would if Mr. Adams, without being a passenger on the defendant's train, and without holding any contract relation whatever with the 'defendant, had been killed by the wrongful act of the defendant. This being so, the question as to the validity of the

940

95 FEDERAL REPORTER.

contra<;t under which the defe:ndaJ,ltcIaims exemption from liability is not material. If full effeot 1;)e. given to the exemption clause, it would only constitute a bar to the recovery of damages by Mr. Adams himself, or by his representatives for the benefit of his estate; but Mr. Adams is not a party to this' action, and the plaintiffs are not demanding the enforcement of any right of his, or any right which ever was subject to his control,pr which could be extinguished or barred by any contract which he could make without being specially authorized as their agent. Therefore the decision of the supreme court of the state of Washington iIi the case of Muldoon v. Railway Co. does not bind, or restrict the independence of, this court in the determination of the rights of the parties inthis'ca,se. The statutes of Idaho f!.re simila,r to the statutes of this state, in providing that, when the death of a person is caused by the wrongful act or negligence of another, his !Jeirs or personal representatives may maintain an action for damages against the person causing the death; and in every such action the jury may give such damages, pecuniary or exemplary, ai;!, under all circumstances of the case, may to them seem just. Un(ier this law the plaintiffs have a right of action to recover compensation for their own loss, and they are not suing to enforce a right of the deceased to recover damages for the injury which he suffered. the contract by which the deceased agreed to exempt the defendant from liability has no effect whatever upon their right of action. Not being parties to the contract, they are not bound by it. In their brief, counsel for the defendant deny that there are any authorities supporting the proposition that the right of action is an iJ:1,dependent right (that is to say, not dependent upon the question whether or not the deceased, if he had survived the infury, could have sustained an action therefor), but I find no lack of authorities affirming that:
"Lord Campbell's act and the statutes of most of the states create, in favor of certain beneficiaries surviving the deceased, an entirely new cause of action, distinct from and independent of any right of action the deceased may have had during his lifetime, or could have bad if he had survived the injury." 8 Am. & Eng. Ene. Law, 859; Martin's Adm'r v. Railroad Co., 151 U. S. 673, 14 Sup. Ct. 533; The Oregon, 73 Fed. 850.

Some of the authorities cited give as a rule that:
the recovery by him of damages for personal injury, this will operateequaIly as a bar in an action by his personal representatives for his death."
"If the deceased In his lifetime did anything that would operate as a bar to

I have no difficulty whatever in giving full assent to this rule, as stated; for I u:nderstand that the phrase "personal representative" ola deceased person means his executor or administrator, who, when suing in his representative capacity, stands in the place of the decedent, claiming such rights only as the law permits him to claim for the benefit of the decedent's estate. But it would be a perversion of the rule to apply it in a case like the one under consideration, in disregard of the elementary principles of the law of contracts. Such, I consider, would be the effect of permitting. an agreement, to which the plaintiffs have not assented, to stand as a bar to a remedy for the inJury which they allege. Demurrer sustained.

IN

RE WALTHER.

941

SCHECK v. KELLY. (Circuit Court, W. D. Arkansas. August 2, 1899.) No. 164.
INJUNCTION-DAMAGES FOR WRONGFUL ISSUANCE-RIGHT OF ACTION.

Where an injunction has been granted without bond, and subsequently the injunction is dissolved, and the bill dismissed, no action will lie at the instance of the defendant against the plaintiff in the injunction suit for damages sustained by reason of the issuance of said injunction.

On Demurrer to Complaint. Ira D. Oglesby, for plaintiff. H. C. Mechem, for defendant. ROGERS, District Judge. The defendant, Harry E. Kelly, sued the plaintiff, A. Scheck, in the chancery court of Phillips county, Ark., and procured an injunction against him restraining him from entering upon, cutting down, or removing timber already cut upon certain lands in that county. Subsequently the injunction was dissolved, and the bill was dismissed. Scheck, who is a citizen of Germany, residing in the state of Tennessee, now sues Kelly, who is a resident of the Ft. Smith division of the Western district of Arkansas, in this court for damages sustained by reason of said injunction. The suit is not based upon any injunction bond, nor does it appear that any was given, but is a simple suit at law for damages, alleging that he sustained damages in the sum of $3,537.60. Kelly demurs to the complaint generally for insufficiency, and, secondly, that plaintiff's complaint is not based upon any bond given to obtain said injunction, and that aside from and without such a bond there is no liability for any damages because of the issuance of said injunction. The court is of opinion that this demurrer should be sustained. In the case of City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 354, it is said:
"It seems that, without some security given before the granting of an injunction order, or without some order of the court or a jUdge requiring some act on the part of the plaintiff which is equivalent to the giving of security, such as a deposit of money in court, the defendant has no remedy for damages which he may sustain from the issuing of the injunction, unless the conduct of the plaintiff has been such as to give ground for an action for malicious prosecution."

There is nothing in the complaint upon which to base a suit for malicious prosecution. See, also, Russell v. Farley, 105 U. S. 433; Lawton v. Green, 64 N. Y. 326; Hayden v. Keith (Minn.) 20 N. W. 195. The demurrer is sustained.
In re WALTHER. (District Court, S. D. New York. August 5, 1899.)
BA,.,-XRUPTCy-OPPOSITION TO DISCHARGE-INSUB'FICIENT SCHEDULES.

Where the bankrupt, previous to the adjudication, had acted as admInistratrix of her husband's estate, and had mingled property of her own With the property of such estate, it is her duty, in the bankruptcy pro·