Edward Hines Yellow Pine Trustees v. Stewart

100 So. 12, 135 Miss. 331, 1924 Miss. LEXIS 85

• Court: Mississippi Supreme Court
• Decided: May 12, 1924
• Docket: No. 23739
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

Appellee, Mrs. Pauline Stewart, for herself and on behalf of her four minor children, the other appellees, sued appellants, Edward Hines Yellow Pine Trustees, in the circuit court of Pearl river county for damages suffered by appellees on account of the alleged wrongful death at the hands of appellant of H. E. Stewart, the husband and father of the appellees, and recovered a judgment in the sum of fifteen thousand dollars from which appellants prosecute this appeal.

"We shall discuss only one assignment of error, the refusal of appellants ’ request for a directed verdict, for the conclusion we reach on that question disposes of the whole case. The basis of this assignment of error is that the questions involved are res judicata; that in a former suit between the same parties or privies involving the same cause of action there was a final' judgment, and that such judgment exhausted and extinguished the rights of the parties to this cause. The facts out of which this question arises are as follows: On July 16, 1920, said decedent, H. E. Stewart, while employed as superintendent of railroad construction for appellants; was injured. On March 10, 19)21, H. E. Stewart brought suit against the appellants for said injury upon the ground that it had been caused by the wrongful act of appellants. While this suit was pending, and on July 14, 1921, said Stewart died. The suit he had brought was thereupon revived under section 2093, Code of 1906 (Hemingway’s Code, section 1760), in the name of his widow, appellee Mrs. Pauline Stewart, as executrix. That-cause proceeded to trial, resulting in a judgment for the plaintiff in the sum of seven thousand, five hundred dollars. The wrongful act of appellants upon which that action was based and upon which recovery was had, namely, the injury to said decedent from which he died, is the basis of the present action. In the first action appellee, Mrs. Pauline Stewart, as executrix, sought to recover for the injury done said decedent, and for which he had sued in his lifetime, which suit after his death was revived in her name as executrix. In the present action appellees, the widow and children of said decedent, sought to recover for the injury they had suffered on account of the wrongful death of said decedent. The question is whether or not under section 721, Code of 1906, as amended by chapter 214, Laws of 1914 (Hemingway’s Code, section 501), there can be two such recoveries.

Appellants’ contention is that since the amendment of said statute authorizing the personal representative of the decedent to sue for the injury done the latter as well as that suffered by the beneficiaries designated by the statute there can be but one suit in which all damages to any and all interested parties must be included. On the other hand, appellees contend that, notwithstanding said amendment, where, as in this case, the decedent sues for the injury to him, and then dies, and his suit is revived in the name of his personal representative, the latter may, without bringing in by amendment or otherwise the damages suffered by the beneficiaries under the statute, prosecute such action to final judgment, recovering alone for the injury to the decedent.

Appellants’ position is sustained by the federal courts, including the supreme court of the United States, in construing the federal Employers’ Liability Act (chapter 149, section 1, 35 Stat. 65; chapter 143, section 1, 36 Stat. 291; U. S. Comp. Stat. 1918, sections 8657 to 8665, inclusive). The first section of that act and the amendment of April 5, 1910 (chapter 149, section 1, 35 Stat. 65; chapter 143, section 2, 36 Stat. 291; sections 8657 and 8665, U. S. Comp. Stat. 1918), and our statutes (section 721, Code of 1906, as amended by chapter 214, Laws of 1914 [Hemingway’s Code, section 501], and section 2093, Code of 1906 [Hemingway’s Code, section 1760]), so far as our statutes are applicable to the particular facts of this case, are substantially the same. Those sections of the federal act are as follows:

“Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District -of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none,'then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect of insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works,' boats, wharves, or other equipment. . . .

“Any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury. ’ ’

It will be observed that the federal act provides that “there shall be only one recovery for the same injury,” while our statute provides that “there shall be but one suit for the same death.” N. Pac. R. R. Co. v. Maerkl, 198 Fed. 1, 117 C. C. A. 237, and St. Louis Iren Mt. & So. Ry. Co. v. Craft, 237 U. S. 648, 35 Sup. Ct. 704, 59 L. Ed. 1160, are squarely in point in favor of appellant’s contention. In the Maerkl Case an injured employee brought an action under the federal Employers ’ Liability Act to recover for his injuries, and shortly thereafter died by reason of such injuries. The action was revived in the name of his personal representative, and by amended declaration damages suffered by his widow and children after his death were sought to be recovered, as well as damages decedent suffered while he lived and for which he had sued. Objection was made that there should be an election between the two rights of action. The plaintiff recovered a judgment assessing the total damages at nine thousand, five hundred and seventy-six dollars and eighty cents, being nine hundred, thirty-six dollars and eighty cents on the first'right of action and eight thousand six hundred and forty dollars on the second. The recovery was sustained by the circuit court of appeals for the Ninth Circuit. That court held that the plain meaning of the amendment to the federal act of April 5, 1910, providing that the right of action given to the person suffering the injury shall survive to his or her personal .representative, etc., was that the damages for the deceased’s personal loss and suffering as well as for the pecuniary loss suffered by the beneficiaries designated by the statute because of his death “not only may be recovered by the personal representative of the deceased in one action, but must be recovered in one action only, if at all.”

In order to get the full significance of what the supreme court said in the Craft Case it should be borne in mind what that court had held prior to the amendment of the federal Employers ’ Liability Act of April 5, 1910. In Mich. C. R. Co. v. Vreeland, 227 U. S. 68, 33 Sup. Ct. 192, 57 L. Ed. 421, Ann. Cas. 1914C, 176, in discussing the character of the cause of action given to the designated beneficiaries by the federal act, the court said that it was independent of any cause of action which the decedent had, and included no damages which he might have recovered for his injury if he had survived; that it proceeded upon altogether different principles; that it was a liability for the loss and damage sustained by the relatives dependent upon the decedent; that therefore it was a liability for the pecuniary damages resulting to the relatives, and for that only — and in Am. R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456, held that the cause of action which was created by the statute in behalf of the injured employee did not survive liis deatli nor pass to his representatives, but that the act in ease of the death of such employee resulting from his injury created a new and distinct right of action for the benefit of the dependent relatives named in the statute; that the damages recoverable were limited to the loss that resulted to them because they had been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee; that “the damage is limited strictly to the- financial loss thus sustained;” in other words, that the federal act in its first section created two distinct causes of action, entirely separate and independent from each other, one to the employee for the injuries suffered by him, the other to his dependent relatives designated by the statute for the injuries suffered by them. The Craft Case, after reviewing and analyzing the Vreeland and Didrioksen Cases, discussed the effect on the federal act of the amendment of April 5, 1910. Construing the act as amended the supreme court in the Craft Case said in part:

“It continues, as before, to provide for two distinct rights of action: One in the injured person for his personal loss and suffering where the injuries are not immediately fatal, and the other in his personal representative for the pecuniary loss sustained by designated relatives where the injuries immediately or ultimately result-in death. Without abrogating or curtailing either right, the new section provides in exact words that the right given to the injured person ‘shall survive’ to his personal representative ‘for the benefit of’ the same relatives in whose behalf the other right is given. . . . And when this provision and section 1 are read together the conclusion is unavoidable that the personal representative is to recover on behalf of the designated beneficiaries, not only such damages as will compensate them for their own pecuniary loss, but also such damages as will be reasonably compensatory for the loss and suffering of the injured person while he lived. Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong. . . .

“Much stress is laid upon the concluding clause in the new section, Hut in such cases there shall be only one recovery for the same injury.’ Passing and reserving the question of its application where there has been a recovery by the decedent in his lifetime (see Michigan Central R. R. v. Vreeland, supra, p. 70), we think this clause, as applied to cases like the present, is not intended to restrict the personal representative to one right to the exclusion of the other, or to require that he make a choice between them, but to limit him to one recovery of damages for both, and so to avoid the needless litigation in separate actions of what would better be settled once for all in a single action. This vieiv gives full effect to every word in the clause and ascribes to it a reasonable purpose Avithout bringing it into conflict Avith other provisions the terms of which are plain and unequivocal. Had Congress intended that the personal representative should make an election between the two rights of action and sue upon one only, it is not easy to believe that it would have chosen the words in this clause to express that intention.”

The supreme court in the Craft Cáse also reviewed the Maerkl Case, quoting with approval the language of the circuit court of appeals in that case that damages for both causes of action “not only may be recovered by the personal representative of the deceased in one action, but must be recovered in one action only, if at all.” The supreme court said with reference to that language:

“So far as we are advised by the reported decisions, this is the view which has been taken by all the courts, federal and state, that have had occasion to consider the question. ’ ’

It is true, as our court held in Hamel v. Railroad, 108 Miss. 172, 66 So. 426 and 809, and as the supreme court held in the Craft Case, there are two distinct causes of action under the statute — one to the decedent, and in case of his death one to the relatives. But where, after his death, the same party or parties are given the right to recover for the entire injury, there ceases to be two causes of action. The two causes of action are merged into one, and after the death of the injured party cannot be divided up. On the death of the decedent both causes of action became one cause, and the right to sue for each is lodged in the same person, and the fruits of the recovery go to the same parties. To hold otherwise there would be two suits for the same death in the face of the express inhibition .of our statute that “there shall be but one suit for the same death.” We hold that, both causes having become merged into one, both were necessarily involved in the first suit. Each action was based on part of the same cause of action. Under these conditions what could have been presented and decided in the first suit is res judicata, whether in fact it was or not. S. B. Dean et al. v. De Soto County (Miss.), 99 So. 563.

The appellee relies on the Hamel Case. That case was not governed by section 721, Code of 1906, as amended by >chapter 214, Laws of 1914 (Hemingway’s Code, Section 501). It was decided under section 721 of the Code of 1906, which expressly prohibited suits by the personal representative where any of the designated next of kin under the statute were in existence. The court simply held in that ease that the administrator could not sue for the injury to the designated relatives because the statute said so. In that case the decedent sued in his lifetime for the injury to him. Afterwards he died, and the suit was revived in the name of his personal representative under section 2093, Code of 1906 (section 1760, Hemingway’s Code). The two causes of action did not merge under the statute as it then stood because they could not under the very language of the statute.

Doubtless the amendment to our statute (chapter 214, Laws of 1914) authorizing the personal representative to sue for the benefit of all was adopted to conform to the federal act, in view of the fact that the latter act gave federal and state courts concurrent jurisdiction of its enforcement. Conflicts and confusion in the administration of the statute in the two jurisdictions were sought to be avoided. But whether that was the purpose or not the construction we put on the statute tends to promote that end which is much to be desired.

Reversed, and judgment here for appellants.

Reversed.