Scheffler v. Minneapolis & St. Louis Railway Co.

Gilfillan, C. J. 1 The action is brought by 'a father to recover for the killing, through the alleged negligence of the defendant, of his son, a child 17 months old, whereby the plaintiff, as he alleges, has been and will be deprived of the services of said son. The statute provides: “A cause of action arising out of an injury to the person dies with the person of either party.” Gen. St. 1878, c. 77, § 1.. This is only declaratory of the rule at common law. Insurance Co. v. Brame, 95 U. S. 754 , and cases cited; Carey v. Berkshire R. Co., 1 Cush. 475 . The statute (Gen. St. 1878, c. 77, § 2,) creates a cause of action when death is caused by the wrongful act or omission of *126 any- party, and vests it in the personal representative, to wit, the executor or administrator. No one else can sue upon it. Nash v. Tousley, 28 Minn. 5 . Order reversed. Dickinson, J., because of illness, took no part in this decision.