St. Louis, Iron Mountain & Southern Railway Co. v. Hesterly

135 S.W. 874, 98 Ark. 240, 1911 Ark. LEXIS 137

• Court: Supreme Court of Arkansas
• Decided: February 27, 1911
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). It is contended that this case is controlled by the Federal .Employers’ Liability Act of April 22, 1908, which, it is claimed, does not permit a recovery for pain and suffering for deceased’s estate. No mention is made in this statute of the jurisdiction of courts to enforce the rights declared or created by it, and it is well settled that State courts may exercise concurrent jurisdiction with the Federal courts in all cases arising under the Constitution, laws and treaties of the United States unless exclusive jurisdiction has been conferred expressly or by necessary implication on the Federal courts. Claflin v. Houseman, 93 U. S. 130, 23 L. Ed. 833; Defiance Water Co. v. Defiance, 191 U. S. 194, 48 L. Ed. 144; 11 Cyc. 996; Raisler v. Oliver, 97 Ala. 714, 12 South. 238; Wilcox v. Luco, 118 Cal. 642, 45 Pac. 676, 50 Pac. 758, 45 L. R. A. 582; Schuyler National Bank v. Bolling, 24 Neb. 825, 40 N. W. 414; Bletz v. Columbia Nat. Bank, 87 Pa. 92; People v. Welch, 141 N. Y. 273, 36 N. E. 328, 24 L. R. A. 117; Bradbury v. Chicago, R. I. & P. Ry. Co., 128 N. W. (Iowa), 1.

It is true, as appellant says, that it is not necessary to plead a Federal statute, but allegations constituting a cause of action or defense thereunder must be made in order to have the benefit thereof. Bradbury v. Choctaw, R. I. & P. Ry. Co., 128 N. W. (Iowa) 1; Smith v. Detroit & T. S. L. Co., 175 Fed. 506; Defiance Water Co. v. Defiance, 191 U. S. 194, 48 L. Ed. 143.

The complaint alleges “that the defendant, St. Louis, Iron Mountain & Southern Railway Company, is, and was on the date hereinafter mentioned, a railroad corporation operating a line of railroad in the State of Oklahoma, and >was in said State of Oklahoma a common carrier of freight and passengers for hire.” There wias no allegation that the carrier was engaging in interstate commerce, nor that deceased was injured while employed by such carrier in such commerce, and, for aught that appears to the contrary in the pleadings, the negligence and injury was purely local to the State of Oklahoma, and the action an ordinary one at common law. Appellant pleaded contributory negligence and_ assumption of risk, as it could do under the law's of that State, in bar of appellee’s right to recover. It is unquestionably true that the suit was not brought under nor based upon said act.

It is also true, however, that it developed in the testimony that the run of the train on which deceased was injured was from Van Burén, Ark., to Coffeyville, Kansas, and it was "not disclosed whether it engaged in or hauled intrastate commerce on the trip. Appellant asked' a peremptory instruction that plaintiff was not entitled in any event to recover on the second count of the complaint for the pain and suffering of deceased for the benefit of his estate. This being sufficient to raise the question under said Federal Employers’ Liability Act, what is the effect of it? See Act of Congress approved April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. Stat. Supp. 1909, p. 1171.

This statute is limited to interstate commerce, to railroad carriers “while engaging in commerce between any of the States or Territories,” and to “any person suffering injury while he is employed by such carrier in such commerce,” or his or her personal representative, for it was without the power of Congress to enact it otherwise. Howard v. Illinois Cent. Rd. Co., 207 U. S. 463.

Congress has plenary and exclusive power to regulate commerce between the States, and each State has like power to regulate commerce purely intrastate, and it is most difficult to separate such commerce, ha's not been attempted and can not be done except at a cost and inconvenience entirely disproportionate to and beyond any possible benefit likely to accrue from such separation, for rarely does a train proceed that does not engage in commerce both interstate and intrastate before its destination is reached.

It is insisted that this law supersedes and suspends the operation of all State laws relating to or incidentally affecting the subject, and particularly that the remedy for the right declared or created by it is exclusive.

In Covington & Cinn. Bridge Company v. Kentucky, 154 U. S. 204, 209, the court said: “The adjudications of this court with respect to the power of the State over the general subject of commerce are divisible into three classes. First, those in which the power of the State is exclusive; second, those in which the States may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive and the States cannot interfere at all.”

In Sherlock v. Ailing, 93 U. S. 99, 104, that court said: “And it may be said, generally, that the legislation of a State, not directed against commerce or any of its regulations, but relating to the rights, duties and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit.”

In Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508, the court quoted in the opinion the above language of the Ailing case, and held valid a statute of Alabama prescribing the qualifications for locomotive engineers, saying: “The power might with equal authority be exercised in prescribing the qualifications for locomotive engineers employed by railroad companies engaged in the transportation of passengers and goods among the States, and in that case would supersede any conflicting provisions on the” same subject made by local authority. But the provisions on the subject contained in the statute of Alabama under consideration are not regulations of interstate commerce. * * * Considered in themselves, they are parts of that body of the local law, which, as we have already seen, properly govern the relation between carriers of passengers and merchandise and the public who employ them, which are not displaced until they come in conflict with express enactments of Congress in the exercise of its power over commerce, and which, until so displaced, according to the evident intention of Congress, remain as the law governing carriers in the discharge of their obligations, whether engaged in the purely internal commerce of the State, or in commerce among the States.”

From these authorities it appears that the State may act within the doctrine of the second class of cases designated in Covington & Cinn. Bridge Co. v. Kentucky, supra, in the absence of controlling and exclusive legislation by Congress. Of course, if a State statute covers matters within the powers of Congress and necessarily conflicting with a statute enacted by Congress, it will be superseded by and must give way to the Federal statute. But it must be remembered that this statute of the State which it is claimed is superseded by the Federal Employers’ Liability Act is not one regulating nor attempting to regulate the relations of emp^ers and employees engaged in interstate commerce by railroads, is not directed against commerce or any of its regulations, and relates only to the rights, duties and liabilities of persons, and can but indirectly and remotely affect the operations of commerce, if at all.

It is a general statute providing that a cause of action for an injury to the person, which was also a cause of action at the common law, shall survive and not perish with the death of the person injured, as it did at the common law. It did not create a right, but only preserved to filie injured person’s estate one that otherwise would have ceased to> exist at his death. Davis v. Railway, S3 Ark. 117.

From the terms -of the Federal statute no intention is disclosed to limit or take from employees any right theretofore existing by which they were entitled tO' a more extended remedy than that conferred upon them by the act, and it was evidently the purpose of Congress in passing it to extend further protection and enlarge the remedy provided by law to employees engaged in interstate commerce in case of death or injury to them while engaged in such service. It may be that this statute does not give a right of action for the injury to the person that survives his death, as some courts have held, but it is not in conflict with the State law giving or preserving such right, which we hold is not superseded by it, and that the remedy it provides is not exclusive of that under the State law permitting a recovery upon said surviving right of action.

We are not unaware of the decision in Fulgham v. Midland Valley R. Co., 167 Fed. 660, nor of other decisions of some of the State courts talcing a contrary view of the law nor of its amendment by Congress since the occurrence of this injury.

2. As between the States of Arkansas and Oklahoma, the testimony shows that the injury occurred within the State of Oklahoma, and its laws would govern, the rule being that in actions of tort based on negligence resulting- in death or personal injury the right of recovery must ibe determined by the law of the State where the injury was inflicted. St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295; Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 38 L. Ed. 958; Slater v. Mex. Nat. R. Co., 194 U. S. 120, 48 L. Ed. 900; 26 Cyc. 1079.

The cause of action which accrued to the injured party by the common law survived after his death to his administrator under section 5493, Snyder’s Comp. Laws of Oklahoma, 1909. By section 5945, Id., a right of action is created in favor of the personal representative for the death of one caused by a wrongful act, the recovery to inure to the exclusive benefit of the widow or next of kin, as is also provided by said Federal Employers’ Liability Act relative to one employed in interstate commerce.

Bji- sec. 36, art. 9, of the Constitution of Oklahoma, the common-law doctrine of fellow servant is abrogated as to employees of railroad companies, and an injured employee is given a tight to recover for every injury suffered by him; “and when death, whether instantaneous or not, results to such employee from any injury for which he could have recovered, * * * had not death occurred, then his legal or personal representative, surviving consort or relative, * * * shall have the same rights and remedies with respect thereto as if death had been caiused by the negligence of the master.”

Sec. 7, art. 23, of its Constitution, provides: “The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.”

We are not able to ascertain that the courts of that jurisdiction have construed these provisions of the law, but they are the same in effect as the laws of this State upon the subject. Secs. 6285, 6289 and 6290 of Kirby’s Digest of the Statutes of Arkansas.

Our laws have been construed in a well considered and able opinion by Judge Cockrirr in Davis v. Railway, 53 Ark. 117, holding that deceased’s cause of action in his lifetime survives, and the right given by this other statute, modeled after Lord Campbell’s Act, results from and accrues on the death of the injured party, and that both actions may be prosecuted in the name of the personal representative. “One is. for the loss sustained by the estate and for the suffering from the personal injury in the lifetime of the decedent; * * * the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the next of kin occasioned by the death alone. The death is the end of the period of recovery in one case, and the beginning in the other. In one case the administrator sues as legal representative of the estate for what belonged to the deceased; in the other he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them.”

We hold this also a reasonable and fair construction of the laws of that State, and that appellee herein was entitled to recover damages for the pain and suffering and mental anguish of the deceased thereunder, and for the pecuniary loss sustained by his next of kin by reason of his wrongful death under either or both the Federal and State law.

3. We do not think error was committed in the giving oE instruction No. 8, which fairly submitted to the jury the question of assumption of risk by deceased. The testimony did tend to show that he had been advised that one of the doors on this car appeared to be wired up, that some of the cinders had fallen through from over it; but it was not this door through which deceased fell, and the most danger that could have been anticipated from its condition was the unevenness of the cinders by reason of the depression over this door, across which he could step, which might have caused him to fall within the car on the cinders in the performance of his duty, and nothing more.

Instruction No. 9, objected to, was not an incorrect statement of the law in this case, for under rule No. 401 read in evidence, and with which deceased was shown to be familiar, it was his dutj'- to make inspection only of certain appliances — 'brake beams, running boards, etc., apparatus with which he came in contact by his service — and report defects therein. It was shown that the only inspections made of this trap door, which fastened on the inside, by persons whose duty it was to inspect the cars— the car inspectors — were outside inspections, while a load of cinders four feet deep was upon the door and prevented any possibility of discovery by the inspectors of the insecure and defective fastenings thereof; and the jury might well have found negligence on the part of the company in the failure of this primary duty to the deceased.

It is next contended that the damages allowed for pain and suffering and mental anguish are excessive. Deceased’s legs were both mashed off through the knees, and no physician ministered to him for an 'hour and a half thereafter, and he lived for five hours suffering great pain — at least before the arrival of the physician — and the testimony shows that he suffered great anguish of mind about approaching death, and continually begged those present to pray for him.

In Railway Co. v. Robbins, 57 Ark. 386, the deceased’s leg was mangled and his system subjected to a terrible shock, which he survived for twenty-four hours, under intense pain and in the anguish of impending dissolution, and the court, “without intimating that we would have awarded a sum so large,” refused to disturb a verdict for $2,500.

But in St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 610, it was said: “Courts and juries must deal with these questions in a deliberate and practical manner.”

In Aluminum Co. v. Ramsey, 89 Ark. 522, the plaintiff, 22 years old, was injured in his leg, which had to be amputated below the hip. He was in the hospital ten weeks, suffering great pain; he was disfigured and incapacitated to make a living; and the court reduced the judgment to $12,000.

The court concludes in the case at bar that the verdict upon the second count of the complaint is excessive, and that a remittitur of $5,000 should be entered.

Personally, I do not agree to this. Though the suffering of pain and anguish — the pain of a lifetime and the anguish of mind at approaching death — was compressed, it is true, into five hours of time when death relieved the sufferer, yet the jury were as capable of judging matters of this kind as this court can be, and they have fixed the damages at $10,000; and under the Constitution of Oklahoma verdicts are not to be limited in amount in actions for damages resulting from wrongful death; and I do not agree to the reduction.

If a remittitur of $5,000 is' entered within fifteen days from this date, the judgment herein will be affirmed; otherwise the cause will be reversed and remanded for a new trial.

Mr. Justice Wood dissents from that part of the opinion holding that the remedy provided by the Federal statute is not exclusive.