proof creating a liability against the defendants therefor. It is not shown that insurance would have been effected upon the steam saw-mill at anything like rates that would justify insurance, and it is not shown that its loss by fire was the result of any negligence or want of that degree of prudence which a prudent man would exercise in reference to his own property. It is not indispensable that a complaint, drawn to recover damages for death by wrongful act, under the statute of Nevada, should set forth that there are kindred named in the act. There may be a recovery without. 2. SAME. But if proof is to be given of injury to kindred, the facts must be averred. 3. SAME. Under that statute it is immaterial whether the death of the injured party is immediate or consequential. Demurrer to complaint. Lindsay & Dickson, for plaintiff. HILLYER, D. J. This action is brought under a statute of Nevada requiring compensation for causing death by wrongful act, neglect, or default. The objections taken are-First, that the complaint is ambiguous and uncertain; second, that there is no allegation that the plaintiff's intestate left kindred named in the statute; and, third, that it is alleged that the injury caused the immediate death of the person injured, and there can be no recovery. In regard to the first point there certainly seems to be some ambiguity in the averments concerning the distance the cage fell in the shaft. The shaft is alleged to be 2,800 feet deep. The cable is alleged to have broken at the 1,100 foot level, while the cage was ascending with the plaintiff's intestate from the 1,300 foot level, and to have fallen down the shaft, "to-wit, more than 300 feet." From the 1,100 foot level to the bottom of the shaft is 1,700 feet. The complaint does not show what it was that arrested the cage, if it did not go to the bottom of the shaft, nor anything which explains the averment, "towit, more than 300 feet." If there is anything in the case. making the distance the cage fell material, it ought to be made plainer so that the defendant can meet it. If not, the ambiguity can be removed by striking out the words above quoted. All that seems material to aver is that the fall of the cage caused the death. The two remaining points are based upon the language of the statute of Nevada (section. 115, Comp. Laws, p. 39) entitled "An act requiring compensation for causing death by wrongful acts, neglect, or default:" "Section 1. 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 persons who, or the 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. 2. The proceeds of any judgment, obtained in any action brought under the provisions of this act, shall not be liable for any debt of the deceased: provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child, but shall be distributed as follows: * *If there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons: provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person: and provided further, the jury, in every such action, may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named." Under this statute there are two causes of action-two grounds upon which a recovery can be had: one for the injury to the deceased, and one for the injury to the kindred named in the act. In the first case the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just; and in the second may take into consideration the pecuniary injury to the kindred named in the act. The use of the words "pecuniary and exemplary," in the first clause of the proviso, and of the word "pecuniary," in the last, is significant, and shows that the legislature had both causes of action in view. Otherwise the last clause would serve no purpose. The statute of Nevada is different from any which has come under my observation in this particular, and it is evident that the draughtsman had in his mind certain expressions to be found in some of the cases, and intended to meet them by giving a right of action to the personal representative in which the rule of damages should be the same as it would have been if the deceased had lived and brought it, and in addition to permit the jury to consider the pecuniary loss to the kindred. This is further manifest from the fact that if there are none of the kindred named in the act, there may still be a recovery, and the amount will become general assets. It is evident that in those states in which the statute was construed to limit the measure of damages to the pecuniary loss of kindred, making that the only basis of a recovery, there was no escape from requiring an allegation that kindred were left, and the amount of damage suffered by them. "We consider, upon the whole," say the court in Safford v. Drew, 3 Duer, 640," that the only ground upon which the action can rest is the ground upon which the damages are to be recovered; that the prescription of the one ground or rule of damage has excluded every other, and thus rendered it indispensable, in order to support a suit under the stat ute, that pecuniary loss has resulted to the widow and next of kin." This same construction, applied to the statute before me, would, so far as the kindred named in the act are concerned, limit the recovery to the pecuniary injury they had sustained. But is it not evident that this would be saying that an added incident was the principal and only thing? In my judgment the New York court could never have used. the language quoted if it had been construing the statute of Nevada. It could never have said that the pecuniary loss to the wife and next of kin constituted the sole cause of action-the sole ground upon which the jury could base a verdict. What I have said indicates the result reached upon this point. Whatever the jury "may take into consideration" must be stated in the complaint, for there cannot, properly, be any proof or any deliberation by the jury upon a cause of action not stated. It is not, however, in my opinion, indispensable to the plaintiff's complaint that it should state as a ground of recovery the pecuniary injury to the kindred. The complaint as it stands is sufficient in that it contains, in this particular, allegations touching the injury to the deceased upon which the plaintiff can recover. But if it is a fact that there are kindred of the degrees named in the act, and that they have sustained some pecuniary injury by the death, and if the plaintiff proposes to offer proof of those facts, they must be alleged. The argument upon the part of plaintiff, however, seems to have proceeded upon the theory that because the amount of any recovery might become general assets under the statute, proof might be given of these facts without an averment to support it. This, I think, cannot be done without violating the old and just principle that the allegations and the proof must correspond. Upon this point I have consulted Blake v. The Midland Ry. Co. 10 Law & Eq. 437; The City of Chicago v. Major, 18 Ill. 349; Chicago & Rock Island R. Co. v. Morris, 26 Ill. 400; Conant v. Griffin, 48 Ill. 410; Railroad Co. v. Miller, 2 Col. 465; Safford v. Drew, 3 Duer, 627; 9 & 10 Victoria, c. 93, p. 693; St. Cal. 1862, p. 447; St. Ind. 1862, § 584; Code Iowa, §§ 2525-26; Comp. Laws Mich. p. 1881, (1872;) 1 Rev. St. Ky. 223. The more important point remains to be considered. It is alleged in the complaint that death was the immediate result of the injury received. The argument is that when death is the immediate or instantaneous result of an injury there is no space of time for a right of action to accrue to the injured party, and that none can, therefore, survive to the personal representative. On the other hand, it is contended that this statute gives, and was intended to give, a new right of action, and does not continue any old right which the injured person had. The argument in support of the demurrer assumes that the action which the personal representative brings is the same -to be measured by the same rule of damages-as if the deceased had commenced an action and had died during its continuance. It also assumes that there is such a thing as instantaneous death resulting from an injury to the person. The only case cited to sustain the point is Kearney v. Railroad Co. 9 Cush. 108. That case was decided upon a statute of Massachusetts passed in 1842, as follows: "The action of trespass on the case for damage to the person shall hereafter survive, so that, in the event of the death of any person entitled to bring such action, or liable thereto, the same may be prosecuted or defended by or against his executor or administrator, in the sam, manner as if he were living." And the construction placed upon this act was that "the case contemplated by the statute must be of such a nature that the party injured must himself have, at some time, had a cause of action;" and because the injured person was said to be instantly killed, the court said he never had a cause of action to survive. But under the Nevada statute it is not indispensable to show that the person killed lived long enough. to have a right of action accrue, admitting the Massachusetts case to be sound. All that is necessary is that the wrongful act shall be such as would, if death had not ensued, have entitled the party injured to sue. The statute acts on the wrong-doer, making him liable for damages, "notwithstanding the death of the person injured." The action is given to the personal representative for the purpose, in part, of compensating the kindred named in the act, which is a wholly new and distinct ground from that which the injured party would have had, and cannot be said in any sense to survive. The English statute, upon which the statute now being construed is drawn, is 9 & 10 Vict. c. 93, p. 693, passed in 1846, four years after the Massachusetts statute. In Blake v. Railway Co. supra, the court of queen's bench, |