On Petition for Rehearing.
PER CURIAM.This is an application (1) for rehearing; (2) for an enlargement of the-transcript of record, on the ground that certain evidence introduced at the trial has been omitted; and (3) for a modification of our mandate, so that the defendant may apply to the District Court for the purpose of showing that under the law of Cos-ta Rica the right of action did not survive, and that the administrators of the plaintiff’s estate were improperly admitted to prosecute the cause.
1. As no member of the court who concurred in our decision of January 6, 1925, desires a rehearing, it is denied.
2. As to enlarging the record, we will say that we have examined the affidavit attached to the defendant’s application, and said to contain the omitted testimony; that it there appears that Ramsey testified that what he said to the officer of the troop train — “that his train was the regular passenger train, without any revolutionists. on board” — was not said until after the trains were moving past one another; and that the order to the troops to fire was given at substantially the same time and while the troop train was still moving along. If the' record were enlarged as desired, we are of the opinion that it would not alter the conclusion reached in our decision of January 6.
3. We are also satisfied that there is no occasion for a modification of our mandate on the ground suggested. The action was brought in the Massachusetts district to recover damages for personal injuries. After the completion of the trial in the District Court, the plaintiff died, and his administrators were permitted to appear, without objection, and further prosecute the action. The contention of the defendant with reference to this matter is that the plaintiff left no heirs in the ascending or descending line, and that, such being the case, by the law of Costa Rica, where the accident occurred, the action did not survive. But by the law of Massachusetts, where the action was brought, the right of action survived. Gen. Laws Mass. e. 228, § 1. The right to revive the action is not affected by the fact that the plaintiff received his injuries in Costa Rica. The action having been brought in the Massachusetts district, the right to revive it is governed by the law of Massachusetts, not by that of Costa Rica.
In Baltimore & Ohio R. R. Co. v. Joy, Admr., 173 U. S. 226, 228, 19 S. Ct. 387, 388 (43 L. Ed. 677), the Court of Appeals for the Sixth Circuit certified the following question to the Supreme Court: “Does an action pending in the Circuit Court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, finally abate upon the death of the plaintiff, in view of the fact that, had no suit been brought at all, the • cause of action would have abated both in Indiana and Ohio, and that, even if suit had been brought in Indiana, the action would have abated in that state?” The answer was that it did not.
See, also, Martin v. Wabash R. R. Co., 142 F. 650, 73 C. C. A. 646, 6 Ann. Cas. 582; Van Choate v. General Electric Co. (D. C.) 245 F. 120, 121; Wing v. McCallum (C. C. A.) 292 F. 810.
Petition denied.