Horace Harmon Lurton

“ Nothing is better settled than that, at common law, the right of action for an injury to the person is extinguished by the death of the party injured. The rule, Actio personalis moritur cum persona applies, whether the death from the injury be instantaneous or not. The act of 1908 does not provide for any survival of the right of action created in behalf of an injured employee. ”

“ But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury. ”

“ Whensoever the death of a person shall be caused by wrongful 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 would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death, etc. ”

“ This cause of action is independent of any cause of action which the decedent had, and includes no damages which he might have recovered for his injury if he had survived. It is one beyond that which the decedent had,-one proceeding upon altogether different principles. It is a liability for the loss and damage sustained by relatives dependent upon the decedent. ”

“ This was an action under the employers' liability act of April 22, 1908 [35 Stat. at L. 65, chap. 149, U.S.C.omp. Stat. Supp. 1911, p. 1322] , to recover damages for the wrongful death of the intestate, an employee in the service of the railroad company. The constitutionality of the act was drawn in question by the plaintiff in error in the court below, and this afforded ground for bringing the case directly to this court. Since the allowance of the writ of error all of the constitutional questions have been decided adversely to the plaintiff in error. ”

“ The act is one which relates to the liability of railroad companies engaged in interstate commerce to their employees while engaged in such commerce. The power of Congress to deal with the subject comes from its power to regulate commerce between the states. ”