
    Lofton v. Vogles, Administrator of Vogles.
    TIi» personal representativos of a person whose death was caused by the wrongful act of another,-can maintain an action therefor onl y where the deceased might, had he lived, have maintained an action for an injury, the result of the same act or omission ; and this he could not have done, if his own misconduct contributed directly to the tortious act or omission from which the injury resulted.
    The rule of thejjornmon law, that it must appear that the person committing the tortious act has been prosecuted criminally to conviction, before a civil suit can be maintained for the injury, does not prevail in the United States.
    
    APPEAL from the Washington Circuit Court. °
    
   Perkins, J.

—Simeon Lofton killed. John Vogles. The administrator of Vogles now sues T^ofton, in a civil action, to recover damages for the loss of Vogles’ life.

The suit is brought upon § 784, p. 205, 2 R. S., which provides that “when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the hitter, for an injury for the same act or omission.5’

The former, had he lived, could not have maintained an action, in the case at bar, against the latter for the tortious act or omission complained of, if his own misconduct contributed directly to that tortious act or omission, 1 Hilliard on Torts, p. 132; The Pittsburgh, &c. Railroad Co. v. Karns, 13 Ind. 87.

Hid, then, Vogles commit any wrongful act which caused the tort whereby he came to his death ? The witness on the part of the plaintiif thus states the transaction:

“I saw hfton, coming out to the pike from the direction of Vogles’ store door, walking rapidly, and turning westward up the pike, as if going home. I saw Vog’es come out of his store after Isf:on, walking rapidly, and come round in front so as to lace him. He was talking loud and angrily. He repeatedly called Lofton a damned liar, and on Jjf mi's replying that he lied, Vogles ‘grabbed at Tyf on’s throat,’ with one hand, and struck him with the other. I^ofton then drew a small, old, broken pocket, knife and stuck Vog’es. Vogles then gathered brick-bats and stones, which he threw at Lof o». Vog’es died of tbo wounds he received in the fight, from Tjft on’s knife. Iff on expressed great sorrow at the occunence, and the act he had committed, and. said it ,vvas only because lie was ‘jumped on to’ so violently that it was the only alternative leit to save himself” Vogles was a much younger man than Lofton, about the same size, but much the more active and athletic. He was a quick, active man, about thirty years of age. See 14 Ind. 1. If this evidence, and it represents the case, does not show that the wrongful act of Vogles contributed to produce the act which caused his death, it is difficult to conceive of any that would. The evidence does not show that Lofton had given Vogles any cause to pursue Mm on leaving the store, but the contrary. Lofton had called at the store to collect money that Vogles owed him. Vog'es insulted Lofton; the latter complained, made an angry remark, and left the store. Vogles jumped over the counter and pursued him. Then occurred the street rencounter, terminating in Vogles1 death, as above detailed.

G. L. Dunham and ILoraea Jhffren, for the appellant.

R. Craioford, J. II. Stotzenburg and T. 3£. Brown, for the appellee.

Another position taken is, that this civil suit can not be maintained by the plaintiff without his first showing that he has criminally prosecuted the defendant to conviction; that such criminal prosecution is a condition precedent to a civil suit. This rule of the common law does not prevail in the United States. We do not here depend upon the injured party, or his representative, to institute criminal prosecutions. We have no market overt sales, by which stolen property is protected in the hands of a purchaser till the thief is convicted. We have no forfeiture of estate for felony, whereby the criminal is deprived of the means of satisfying a judgment in a civil action, should one be obtained. See 4 Black. Comm., p 6; Boston, &c. Railroad Co. v. Dana, 1 Gray, 83, and cases cited; Hoffman v. Carow, 22 Wend. 285; Ballew v. Alexander, 6 Humph. (Tenn.) 433; 1 Hilliard on Torts, p. 71, et seq.

Per Guriam. — The judgment is reversed, with costs. Cause remanded for further proceedings, in accordance with this opinion, with leave to either party to amend.  