
    Anton Scheffler vs. Minneapolis & St. Louis Railway Company.
    May 31, 1884.
    A father cannot maintain an action for the negligent killing of his infant child. It must be brought under the statute by the executor or adm.nistrator.
    Appeal by defendant from an order of the district court for Scott, county, Macdonald, J., presiding, refusing a new trial.
    
      Peck & Little, for appellant.
    
      Brown & Hawkins, for respondent.
   Gilfillan, C. J.

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 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.
     