Nichols

In April, 1922, Nichols, defendant in error, brought action against the railway company, plaintiff in error, to recover damages for the death of his wife while a passenger on a train of the railway company. The defendant answered, denying negligence, and a jury having been waived by stipulation of the parties, the court niade findings to the effect that the allegations of the complaint and the amendment thereto, were true, except as, to the *13 amount of damages; that the allegations of the answer were not true. However, as a conclusion of law, the court, on June 6, 1922, adjudged that plaintiff take nothing by his action. Upon review of that judgment it was held that under section 1820 of the Statutes of New Mexico, which provides that any railway company, through the negligence or wrongful act of whose agents or servants a passenger is injured, resulting in death, shall pay $5,000, to be recovered by action by the husband or wife, an action for recovery may he maintained in a federal court in a district of California, and that a state statute giving a right of action for wrongful death which fixes the amount recoverable becomes a limitation which inheres in the remedy.…