213 U.S.

Argument for Plaintiff in Error.

statute. The error committed in the Pennsylvania court was by wrongly interpreting the meaning of this treaty and its effect upon the Pennsylvania law. Deni v. Penna. R. R., 181 Pa. St. 521.

The purpose and effect of fatal accidents acts is to protect human life. Stewart v. B. & O. R. R. Co., 168 U. S. 445; Mulhall v. Fallon, 176 Massachusetts, 266; Kellyville Coal Co. v. Petraytis, 195 Illinois, 217; Cleveland, C. C. & St. L. Ry. Co. v. Osgood, 73 N. E. Rep. 285, 286; Trota v. Johnston, 28 Ky. Law Rep. 853. This being so, the giving to the wife or heirs of the deceased an action to recover damages for his wrongful death is a plain, ordinary and efficacious means of protecting and securing his life from negligence. He cannot sue if killed, but his heirs can; and the value of his life can be measured by his earning power, and the defendant compelled to pay accordingly. It makes no difference to the negligent defendant who sues, or upon what theory the action is maintained. It must pay for its negligence, and the fact that the action exists is the cause compelling the defendant to exercise care and use every means possible to prevent accidents.

Under Article 3 of the treaty with Italy, all the remedies known to the law by which security and protection are afforded to the persons of Americans are, by force of this article of the treaty, intended to be granted to Italian subjects.

The action for death, while it may be a new right of action in legal theory and not a survival of the right which existed in the husband, is but a substitute for his action and is founded upon the injury done to him, and cannot be maintained except as a substitute for his right of action; nor can it be maintained unless it can be shown that there has been a wrong and injury committed against the deceased. The widow in her action. brings but a substitute for the right of action which would have belonged to her husband and did belong to her husband before his decease. He may settle or prosecute his claim to judgment, and if so, she has no action. It is only where there has been no reparation made for the wrong to the husband himself, that the

Argument for Defendant in Error.

213 U.S.

widow has any standing to maintain her action; and the Pennsylvania courts have distinctly repudiated the idea that the widow can maintain an action where the husband has released or settled his claim. Hill v. Pennsylvania Railroad, 178 Pa. St. 227; Northern Pacific R. R. Co. v. Adams, 192 U. S. 440.

The right of free access to the courts, as granted by Article 23 of this treaty, means, among other things, the right to maintain actions at law in the same way as citizens.

Mr. Johns McCleave, with whom Mr. John S. Wendt was on the brief, for defendant in error:

Fixed and received construction of the statute laws of a State by its own courts, constitute a part of such statutory law. Green v. Neale, 6 Pet. 297; Bank v. Knopp, 16 How. 391.

The Federal courts will respect state court decisions and will regard them as conclusive in all cases upon the construction of their own constitution and laws. Brown v. Runnells, 5 How. 139; Bucher v. Railroad Co., 125 U. S. 583; Garnley v. Clark, 134 U. S. 348.

The right to recover for injury to the person resulting in death is of very recent origin and depends wholly upon statutes of the different States. The questions growing out of these statutes are new, and many of them unsettled. Each state court will construe its own statute on the subject and differences are to be expected. Dennick v. Railroad Company, 103 U. S. 11; Zeiger v. Penna. R. R. Co., 151 Fed. Rep. 348; Fulko v. Schuylkill Stone Co., 163 Fed. Rep. 124.

The treaty between the United States and the Kingdom of Italy does not amend or alter the statutes of Pennsylvania, so as to give a non-resident alien a right of action for the death of a relative under such statutes.

In Pennsylvania, no right of action has been given to Carmine Maiorano to recover damages for his own death. If one is injured and brings suit to recover for the injury in his lifetime, and subsequently dies as a result of the injury, it is true the right of action survives in the name of the administrator of

the decedent by virtue of § 18, of the act of April 15, 1851; but where death results from the injury before any suit is brought, the right of action of the injured man dies with him, and does not survive to his administrator or other personal representative. In such case the right of action is given by the act of April 26, 1855, to the persons therein enumerated to recover the pecuniary value to them of the life that has been taken away. The action is not for the injury to the dead man, but it is to restore compensation for his death to those who were pecuniarily interested in the continuance of the life. It is a new and distinct right of action created by the statute, and vested in the parties named by force of the statute, and does not come to them by way of succession or inheritance from the dead man, because the dead man had no such right. Pennsylvania R. R. Co. v. Zebe, 33 Pa. St. 318, 329; Fink v. Garman, 40 Pa. St. 95; Books v. Borough of Danville, 95 Pa. St. 158, 166; . Chambers v. B. & O. R. R. Co., 207 U. S. 142. See also: Pennsylvania R. R. Co. v. Henderson, 51 Pa. St. 315, 322; Birch v. Railroad Company, 165 Pa. St. 339, 345; McCafferty v. Railroad Co., 193 Pa. St. 339, 345.

Punishment of the wrong-doer is not the object of the act, but restoration to the widow and children of the means of support, of which the wrong-doer has deprived them, in taking away the life of their bread-winner.

Plaintiff can show, therefore, no right existing in her under the statutes of Pennsylvania, and never being a sojourner or resident in the United States, or any part thereof, she is. clealy outside of the terms of the treaty between the Kingdom of Italy and the United States.

MR. JUSTICE MOODY delivered the opinion of the court.

The husband of the plaintiff in error was killed while a passenger on a train by the negligence of the defendant. The death occurred within the State of Pennsylvania, and this action was brought in a court of that State to recover damages for it.

The plaintiff was a resident of Italy and a subject of the King of Italy. By the statutory law of the State of Pennsylvania (Act of April 15, 1851, P. L. 669, pars. 18 and 19, as amended by the Act of April 26, 1855, P. L. 309, par. 1), the right to recover damages for death occasioned by unlawful violence or negligence is in certain cases conferred upon the husband, wife, children or parents of the person killed. By its literal terms the benefits of the statute are extended to all such surviving relatives, irrespective of their condition. It has, however, been held by the Supreme Court of Pennsylvania, in the case of Deni v. Pennsylvania R. R. Co., 181 Pa. St. 525, as well as in the case at bar, that this statute does not give to relatives of the deceased, who are non-resident aliens, the right of action therein provided for. There is nothing in this case to take it out of the general rule that the construction of a state statute by the highest court of the State must be accepted by this court. It is, therefore, not material that similar statutes have been differently construed, as, for instance, in Mulhall v. Fallon, 176 Massachusetts, 266, and Kellyville Coal Co. v. Petraytis, 195 Illinois, 217.

The plaintiff rests her right to recover not upon this statute alone, but upon certain provisions of a treaty between the United States and the King of Italy, ratifications of which were exchanged on November 18, 1871. 17 Stat. 845. She asserts that the effect of the treaty was to confer upon the plaintiff the same right to recover damages for the death of her husband that she would have enjoyed by the statute of the State of Pennsylvania if she had been a resident and citizen of that State. The contention of the plaintiff in this respect was denied by the trial court, which granted a judgment of nonsuit, which was affirmed by the Supreme Court of the State, and is now here on writ of error. The only question for our decision is whether a proper interpretation and effect were allowed to the treaty.

We do not deem it necessary to consider the constitutional limits of the treaty-making power. A treaty, within those

limits, by the express words of the Constitution, is the supreme law of the land, binding alike National and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights. Ware v. Hylton, 3 Dall. 199; United States v. Schooner Peggy, 1 Cr. 103, 110; Foster v. Neilson, 2 Pet. 253, 314; Hauenstein v. Lynham, 100 U. S. 483; per Mr. Justice Miller, in Head-money Cases, 112 U. S. 580, 598, quoted with approval by Mr. Chief Justice Fuller in In re Cooper, 143 U. S. 472, 501; United States v. Rauscher, 119 U. S. 407, 418; Geofroy v. Riggs, 133 U. S. 258.

We put our decision upon the words of the treaty. By a fair interpretation of them, did they directly confer upon the plaintiff the right which she seeks to maintain? We are of the opinion that they did not.

Three articles only are relied on as material. They are:

Article 2.

"The citizens of each of the high contracting parties shall have liberty to travel in the States and Territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to, or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established."

Article 3.

"The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed upon the natives."

Article 23.

"The citizens of either party shall have free access to the courts of justice, in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than VOL, CCXIII-18