Show STANT DEATH KILLS ACTION Opinion of Montana Supreme Court in Personal In Injury Injury Injury jury Suit SuitCASE SuitCASE SuitCASE CASE ORDERED DISMISSED HEIRS HAVE NO RECOURSE UN UNDER UNDER UNDER DER FELLOW SERVANT LAW 1 Helena Mont March 23 The su supreme supreme preme premo court today rendered an pinion opinion of importance in personal o injury suits Jn fact the tant t nt of oe this character ever eer emanating tram front the Montana bench The title of the suit is that of Wini Winifred Winifred Winifred fred Dillon and others against the Great Northern Railway company and involves the right of heirs to institute damage proceedings where the person involved suffered instant death It originated in Flathead county In the lower ower court the plaintiffs were awarded damages but this finding is reversed and the cause remanded with instructions instructions Instructions to dismiss on the broad ground that if the Injured party died before bringing the action the cause of at action literally died with him Although this common law rule has been beell modified the opinion states that such a statute does not create a new flew cause of action but only carries forward the right which the tho injured party had before his death Brought Under Fellow Servant Law The suit was vas prosecuted under the provisions of the fellow tellow servant law Dillon having been employed in an om dal ial capacity by thu tho th carrier The opinion opInion opinion ion holds that this act does not intend to create a new cause of action and that the suit was instituted to recover damages which resulted to Dillons es estate estate estate tate as a consequence of his death and that the question is Does the agreed statement of facts concerning conc his death show a cause caUle of action in favor of Dil Dillon Dillon lon Ion which survived his death The statement shows that death was instantaneous and that he did not sur survive survive vive for a second of time after the ac ae accident Continuing the opinion says Action Died With Him If a cause of ot action arose in favor of the Injured prior to his death the right of action which he lie h thus had survives and may ma be prosecuted pros by his heirs or personal representatives Hence the question Did a cause of ac action action action tion arise in favor f vor of Dillon prior to his death Death having been instantaneous Instantaneous Instantaneous the opinion holds that no cause existed with or survived Dillon and declared that all survival statutes In which category the fellow servant act of 1905 Is placed presuppose presuppose presuppose pose that deceased had at one time a aright aright aright right of action for damages Hence Henc the opinion that there was not any survival of a right of ot action and the dismissal thereof |