Cain v. Bowlby

• Decision Date: 09 December 1940
• Docket Number: No. 2057.,2057.
• Parties: CAIN v. BOWLBY.
• Court: U.S. Court of Appeals — Tenth Circuit

114 F.2d 519 (1940)

CAIN v. BOWLBY.

No. 2057.

Circuit Court of Appeals, Tenth Circuit.

September 3, 1940.

Writ of Certiorari Denied December 9, 1940.

Robert L. Holliday, of El Paso, Tex. (Donovan N. Hoover, of Santa Fe, N. M., and Harold L. Sims, of El Paso, Tex., on the brief), for appellant.

Julian P. Harrison, of El Paso, Tex., and W. C. Whatley, of Las Cruces, N. M., for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

Writ of Certiorari Denied December 9, 1940. See 61 S.Ct. 319, 85 L.Ed. ___.

BRATTON, Circuit Judge.

Section 36-101, N.M.Comp.St.1929, as amended by chapter 19, Laws of 1931, provides: "Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of Seven Thousand Five Hundred Dollars, which may be sued and recovered; first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother; or fourth, if the deceased be over twenty-one years of age and unmarried, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not of a negligent defect or insufficiency."

The statute was initially enacted in 1882, and was the first section of a general act relating to damages for wrongful death. As originally enacted it authorized the recovery of $5,000. By the amendment of 1931 the authorized sum was increased to $7,500, and a dependent father or mother or dependent brother or sister of an unmarried deceased over the age of twenty-one years was included among those entitled to maintain an action. The second and third sections in the original act were addressed to the recovery of compensatory damages in other cases of wrongful death, and with certain changes which are not material here they are now sections 36-102 and 36-104, N.M. Comp.St.1929.

A truck owned by defendant, doing business under the trade name Cain's Truck Lines, and operated as a duly authorized common carrier for hire between Oklahoma City and Los Angeles, and intermediate points, and an automobile owned and operated by Doctor L. M. Bowlby, of El Paso, Texas, collided on a public highway near Lordsburg, New Mexico, at about four o'clock in the morning. The doctor was killed instantly, and his surviving widow brought this suit to recover the sum of $7,500 for the death of her deceased husband and $800 for damages to the automobile. She charged negligence in the operation of the truck. Defendant denied such negligence and alleged contributory negligence. The jury returned a verdict for plaintiff for $7,500 for the death of the deceased and $600 for damages to the automobile. Reference will be made to the parties as they were designated below.

The cause of action for the death of the deceased is predicated upon section 36-101, as amended. The penal sum therein specified is sought, and plaintiff bottoms her claim exclusively upon that section. Defendant contends that the cause of action, if any, is not within that section but comes within section 36-102, and that under section 36-104 it is enforceable only by the personal representative of the estate of the deceased. By the common law a right of action for personal injuries is extinguished with the death of the person injured; no civil action may be maintained for a tort resulting in death. Mobile Life Insurance Co. v. Brame, 95 U.S. 754, 24 L.Ed. 580; The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Martin v. Baltimore & Ohio R. R. (Gerling v. Baltimore & O. R. Co.), 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Michigan Central R. R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas.1914C, 176; St. Louis, I. M. & S. Ry. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L. Ed. 1160; Romero v. Atchison, T. & S. F. Ry. Co., 11 N.M. 679, 72 P. 37. Section 36-101 is in derogation of the common law and is therefore to be strictly construed. Romero v. Atchison, T. & S. F. Ry. Co., supra; El Paso Cattle Loan Co. v. Hunt, 30 N.M. 157, 228 P. 888.

The pertinent part of the statute is limited to cases in which a person dies from injury caused or occasioned by the negligence, unskillfulness or criminal intent of an officer, agent, servant or employee of a railroad company while operating, conducting or managing a locomotive, car or train of cars, or a driver of a stagecoach "or other public conveyance" while in charge thereof as such driver. Does the general language "or other public conveyance" cover a truck engaged as a common carrier of freight? Where enumerated or designated classes of persons or things in a statute are followed by general words, the latter must be confined to persons or things reasonably of the same kind. That is the well-recognized rule of ejusdem generis. Grafe v. Delgado, 30 N.M. 150, 228 P. 601; Maxwell Lumber Co. v. Connelly, 34 N.M. 562, 287 P. 64. But like many others, it is merely a rule of construction to be used as an aid in ascertaining the legislative intent. State v. Anaya, 28 N.M. 283, 210 P. 567; State v. Ornelas, 42 N.M. 17, 74 P.2d 723.

At the time of the enactment of the statute in 1882 trucks were unknown. It therefore is manifest that the legislature could not have had them specifically in mind. And the statute was amended in 1931, after trucks had become and were a common type of carrier, and the amendment did not expressly include them or otherwise change the kinds or classes of torts for which recovery could be had. It was concerned with other matters. But the statute is prospective in character and comprehensive in scope in respect of the recovery of damages for death resulting from tort in the operation of locomotives, cars, stagecoaches or other public conveyances. And it is a general rule in the construction of statutes that legislative enactments in general and comprehensive terms, and prospective in operation, apply to persons, subjects and businesses within their general purview and scope, though coming into existence after their passage, where the language fairly includes them. Newman v. Arthur, 109 U.S. 132, 3 S.Ct. 88, 27 L.Ed. 883; Pickhardt v. Merritt, 132 U.S. 252, 10 S.Ct. 80, 33 L.Ed. 353; McMillan v. Noyes, 75 N.H. 258, 72 A. 759; Burton v. Monticello & Burnside Turnpike Co., 162 Ky. 787, 173 S.W. 144; Commonwealth v. Maxwell, 271 Pa. 378, 114 A. 825, 16 A.L.R. 1134; Gaiser v. Buck, 203 Ind. 9, 179 N. E. 1, 82 A.L.R. 1348; Equality Tp. v. Star Tp., 200 Minn. 316, 274 N.W. 219; In re Barnes, 212 N.C. 735, 194 S.E. 499; Acme Oil & Gas Co. v. Cooper, 168 Okl. 346, 33 P.2d 191; Pellish Bros. v. Cooper, 47 Wyo. 480, 38 P.2d 607. In Jerome H. Remick & Co. v. American Automobile Accessories Co., 6 Cir., 5 F.2d 411, 40 A. L.R. 1511, certiorari denied, 269 U.S. 556, 46 S.Ct. 19, 70 L.Ed. 409, it was held that the broadcasting by radio for profit of a copyrighted musical composition infringed the statutory copyright even though radio was developed after the enactment of the Copyright Act; in Re Fox Film Corporation, 295 Pa. 461, 145 A. 514, 64 A.L.R. 499, that a statute requiring the approval of the state board of censors to display a motion picture film applied to a production of the spoken language, although the Movietone processes of producing spoken language films were invented after enactment of the statute; in Haselton v. Interstate Stage Lines, 82 N. H. 327, 133 A. 451, 47 A.L.R. 218, that a statute relating to a person engaged in transportation by motor vehicle applied to companies operating high-powered and capacious busses catering to long distance transportation, despite the fact that such transportation was unknown at the time of the enactment of the statute; and in Bruce Transfer Co. v. Johnston, Iowa, 287 N.W. 278, that a statute providing that an action might be brought against any railroad corporation, the owner of stages, or other line of coaches or cars in any county through which such road or line passed or was operated applied to a company engaged in the operation of freight trucks of semitrailer type upon a fixed schedule and over a regular route although that kind of transportation came into being long after the statute was enacted. Moreover, in Mallory v. Pioneer Southwestern Stages, 54 F.2d 559, this court reviewed this statute and said that a motor bus engaged in the transportation of passengers for hire was a public conveyance within its meaning. Motor busses were unknown at the time the statute was enacted, but the court manifestly concluded that they were sufficiently similar to stagecoaches to fairly come within its scope. That construction was placed upon the statute almost ten years ago. The legislature of New Mexico has...