law; and while we do not mean to question the proposition that the defence of contributory negligence may be raised by demurrer, when it can be made out from the averments of the declaration itself, yet we think the declaration in the present case shows a good cause of action, and that the demurrer thereto ought to have been overruled.

Judgment reversed.

Action for Death by Wrongful Act-Conflict of Laws.-See Usher v. West Jersey R. Co. (Pa.), and note, 41 Am. & Eng. R. Cas. 514, 521; Higgins v. Central New Eng. & W. R. Co. (Mass.), 48 Id. 512, note, 516.

ST. LOUIS, IRON MOUNTAIN & SOUTHERN R. Co.

V.

NEEDHAM.

(U. S. Circuit Court of Appeals, Eighth Circuit, Oct. 3, 1892; 52 Fed. Rep. 371.)

Action for Death-Who May Sue-Widow as an "Heir at Law."-A widow is an "heir at law" of her deceased husband within the meaning of a statute giving the heirs at law of a person wrongfully killed the right to sue for his death.

Same-Necessary Parties.—Where a cause of action for the negligent killing of a person is given by statute to his heirs at law for the exclusive benefit of his widow and next of kin, the widow cannot maintain the action without joining other heirs who are in existence and entitled to share in the amount recovered. All parties interested must be joined in such an action.

Same-Measure of Damages-Instruction. In an action by a widow for the wrongful killing of her husband, it is error for the court to positively direct the jury to measure the damages by a mathematical calculation based on the yielding power of money when invested in an annuity; and such error is not cured by a subsequent statement of the court that in the end the whole matter of damages is left to the sound judgment of the jury. It is also error for the court to direct the jury that in case they believed plaintiff's expectancy of life was greater than that of her husband, to add to the amount that would purchase the annuity, the present value of any property that she would probably have received from her husband as dower if he had not been killed.

IN error to the Circuit Court of the United States for the Eastern District of Arkansas.

This is a writ of error to reverse a judgment against the plaintiff in error for its negligence in causing the death of the husband of the defendant in error, who was the plaintiff below, and will hereafter be so designated. The statute of Arkansas under which this action was brought reads as follows:

"Sec. 5225. Whenever the death of a person shall be caused by wrongful act, neglect, or default, 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 case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. Sec. 5226. Every such action shall be brought by and in the name of the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person: provided, that every such action shall be commenced within two years after the death of such person. Act March 6, 1883." Mansf. Dig. Ark. §§ 5225, 5226.

Plaintiff in her amended complaint alleged the citizenship of the parties to the suit; her marriage with D. L. Needham; that he was killed through defendant's negligence; and then averred that there had never been any administration of his estate; that he left no issue or father or mother, but did leave a brother of the half blood, a son of his mother, who was a minor, and his next of kin. The Arkansas statutes provided that in such a case the personal property should be distributed to the widow and next of kin in equal shares. Sections 2522, 2533, 2592, Mansf. Dig. To this complaint a demurrer was interposed by the railroad company, and overruled by the court. The company then answered, and for a second defence pleaded the statute set forth above (section 5226, Mansf. Dig.), and averred that the plaintiff could not maintain the action under this statute. The plaintiff interposed a demurrer to this second defence, and this demurrer was sustained. The rulings of the court upon these demurrers and various rulings during the trial which followed are assigned as error. George E. Dodge and B. S. Johnson, for plaintiff in error. JC. Marshall, C. T. Coffman, and James P. Clarke, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN, Circuit Judge.-In the determination of this case it has been necessary to decide but a single question, and that Widow as an is: When a cause of action for the negligent killing "heir at of a deceased person is given by statute to his

law."

heirs at law for the exclusive benefit of his widow and next of kin, can the widow or any one of the heirs at law maintain the action without joining other heirs who are in existence and entitled to a share of the amount recovered? The contention of the defendant that the words "heirs at law" in this statute do not include the widow, and hence that she may not be a party to this action, cannot be sustained.. It is true that at common law the technical meaning of the term "heir at law " is one upon whom the law casts an estate in real property immediately upon the death of the ancestor intestate; but in view of the facts that under the statutes of Arkansas the inheritors of the real estate also inherit the personal estate in the same proportions (section 2522, Mansf. Dig.); that the widow receives a larger share in the personal than in the real property (sections 2571, 2591, 2592, Mansf. Dig.); that, if there are no children or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred, capable of inheriting, the whole estate of the deceased husband descends to her by operation of law (section 2528, Mansf. Dig.) (and in the latter case, if the widow could not maintain the suit, there would be no heir at law to bring it, although the widow would be entitled to the entire amount to be recovered); and the further fact that the evident purpose of the statute in question in permitting the action to be brought by the heirs at law when there were no personal representatives of the deceased was to give the action in that event to those beneficially interested,. we are constrained to hold that these words in this statute were intended to have a broader signification; that they were used in contradistinction to devisees, and include all those entitled to a share in the distribution of the personal estate of persons dying intestate under the Arkansas statute. The question then recurs, Can one of these heirs at law maintain this action without joining others in being, who are entitled to a share of the amount recovered? The statute in question was passed March 6, 1883. At common law no one could maintain an action for the negligent killing of a deceased person, and in the absence of this or some similar statute, this action could not be maintained. Railway Co. v. Barker, 33 Ark. 353; Wood v. Blackwood, 41

All heirs at law necessary parties.

Ark. 299; Nash v. Tousley, 28 Minn. 5; Wilson v. Bumstead, 12 Neb. 3. Since the right of action and the remedy for the wrongful killing exist only by virtue of the statute, they exist for the benefit of the persons there specified, and of such persons only; and where, as in this case, such a statute expressly specifies the parties who may bring the action, those parties, and those parties only, can maintain it. Thus in Nash v. Tousley, supra, where the statutes of Minnesota provided that "where death is caused by the wrongful act or omission of any party, the personal representative of the deceased may maintain an action,

* *

*

and the amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person," an action brought by father for the negligent killing of his son was dismissed, and it was held that such an action could be maintained only by the executor or administrator of the son's estate. To the same effect are Wilson v. Bumstead, 12 Neb. 1; Miller v. Railway Co., 55 Ga. 144; Books v. Danville, 95 Pa. St. 159, 166; Woodward v. Railway Co., 23 Wis. 404; Kramer v. Railway Co., 25 Cal. 436; Needham v. Railway Co., 38 Vt. 304; Hulbert v. City of Topeka, 34 Fed. Rep. 510. The first section of this statute provides that the person or corporation whose wrongful act, neglect, or default causes the death of a person shall be liable to an action in all cases where he or it would have been liable to the person killed if the injury had not resulted in death. The second section provides that every such action shall be brought by and in the name of the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; that the amount recovered shall be for the exclusive benefit of the widow and next of kin, shall be distributed to them in the proportions provided by law for the distribution of the personal property of persons dying intestate; and that the jury may give such damages as they shall deem a fair and just compensation for the pecuniary injuries resulting from such death to the widow and next of kin.

Obviously the purpose of the legislature was to provide for the recovery in one action of a single amount, which should, as nearly as possible, equal the aggregate amount of pecuniary loss the widow and next of kin sustained. The statute does not provide, and nothing in it evinces any intention to provide, that each of the heirs shall receive by a separate action, or by distribution of the amount recovered in a single action, such an amount as will reimburse him for the pecuniary loss which he has sustained from the death. On

the other hand, it does provide that the amount shall be distributed to the same persons, and in the same proportions, as the personal estates of intestates are distributed, although it is perfectly obvious that under this provision it must often happen that the distribution will give large shares to those who suffer little pecuniary loss, and inadequate compensation to those who are grievously injured. Thus, in the case at bar, it is alleged that the half-brother, who is the next of kin to deceased, suffered no pecuniary loss by his death, while the widow, who brings this action, was dependent upon him for support, and suffered all the pecuniary loss sustained by any one; nevertheless, under this statute, the half-brother is entitled to one-half of the amount recovered in the action, since it is provided by the statutes of Arkansas that the personal property of the intestate shall, in such a case, be distributed in this proportion. In other words, no one of the beneficiaries named in the statute is entitled to measure his recovery by the pecuniary loss he has suffered, but he must take that share of the aggregate amount recovered for the pecuniary injury to the widow and next of kin which the statute would give him in the personal estate of the deceased dying intestate. From these provisions of the statute, from the basis of distribution there fixed, it clearly appears that none of the heirs is given a separate action, or a separable interest in the action, against the wrong-doer, until after the judgment is recovered, but that all are jointly interested in the cause of action until distribution of the proceeds is adjudged. In this case the half-brother had a joint and equal interest with the plaintiff in the action and the recovery, and it is well settled that when the action is for the assertion of a joint and not a several interest, all persons having an interest in the subject of the action or the relief demanded must be joined.

Any other rule would lead to endless confusion and great injustice. Suppose, in a case arising under this statute, there are 20 heirs entitled to share the personal estate in proportions varying from one twentieth to one third, and that each may maintain a separate action for the wrongful killing of a deceased person. The aggregate damages to the widow and next of kin must, in reality, be the same in each case-but how the estimates of 20 juries would differ! The amount recovered in each case must be distributed among the 20 heirs in the same proportions, and 20 trials must be endured to determine the rights of these litigants. No such practice or result was intended by the legislature or provided for by this statute. It gives "an action"-a single action, not several setions for the wrongful killing. It provides that every such