Western Union Tel. Co. v. McGill, 271.

• Decision Date: 18 September 1893
• Docket Number: 271.
• Citation: 57 F. 699
• Parties: WESTERN UNION TEL. CO. v. McGILL et al.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F. 699

WESTERN UNION TEL. CO. v. McGILL et al.

No. 271.

United States Court of Appeals, Eighth Circuit.

September 18, 1893

Statement by SANBORN, Circuit Judge:

The Western Union Telegraph Company, the plaintiff in error brings this writ to reverse a judgment against it in favor of Thomas McGill, Richard Lambert McGill, and Jessie Margaret McGill, the defendants in error, who were the plaintiffs below, for causing the death of Rebecca G. McGill by neglecting to deliver a telegram. Rebecca G. McGill was the wife of Thomas McGill, and the mother of the other defendants in error.

In the year 1868 the legislature of the state of Kansas enacted the following statute: 'When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.' Gen. St. Kan. 1889, par. 4518.

In the year 1889 that legislature enacted the following statute 'That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, (now paragraph 4518 supra,) is or has been at the time of his death in any other state or territory, or when, being a resident of this state no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deceased.' Gen. St. Kan. 1889, par. 4519.

The plaintiffs base their action upon these two statutes. Evidence of the pecuniary loss to the widower, Thomas McGill, by the death of his wife, was received in evidence over the defendant's objection. The court refused a requesd of the defendant to instruct the jury 'that Thomas McGill, being the husband of the deceased, is not the widow or next of kin, and is not, under the law, authorized to maintain this action against the defendant.' These rulings of the court, with others, are assigned as error.

R. R. Vermilion and C. M. Ferguson, (George H. Fearons and Kos Harris, on the brief,) for plaintiff in error.

T. B. Wall, (J. R. Hallowell and J. M. Humphrey, on the brief,) for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

Under the common law no one could maintain an action for the negligent killing of another; no one was entitled to damages for such an act. The first change in the common-law rule was made in England by Lord Campbell's act, (9 & 10 Vict. c. 93, p. 693,) which provided that, whenever the death of any person should be caused by the wrongful act, neglect, or default of another, in such a manner as would have entitled the party injured to have maintained an action in respect thereof if death had not ensued, an action might be maintained if brought within 12 months after the death of such person in the name of the executor or administrator of the person killed, for the benefit of the wife, husband, parent, and child of the person whose death should have been so caused; that the jury might give such damages as they might think had resulted to the respective persons for whose benefit the action should be brought; and that the damages so recovered, after deducting the costs not recovered from the defendant, should be divided among such beneficiaries in such shares as the jury by their verdict should find and direct. The first statute in this country upon the subject was the act of the New York legislature of 1847, (chapter 450.) That act made the party responsible if death had not ensued liable to an action for damages, notwithstanding the death, to be brought by the personal representatives, and provided that the recovery should be 'for the exclusive benefit of the widow and next of kin.' The legislatures of the various states have generally copied these acts with more or less accuracy, and many of them have been construed by the courts of England and of this country. Under these statutes the following rules have been established without dissent among the authorities:

The action under them is entirely the creature of the statute. If the right to maintain it and to recover the damages allowed in it in any case is not expressly given by these statutes, the judgment rendered cannot stand.

Where such a statute giving a new right of action for damages specifies the person or class of persons for whose exclusive benefit the damages are to be recovered, no damages to any other person or class of persons can be allowed in the action based on the statute.

The damages given by these statutes are not given in satisfaction of the wrong done, but are intended as a compensation to the persons for whose benefit the recovery is permitted for the pecuniary losses they have sustained by the death. They must be measured by these losses. There can be no recovery for the injuries or suffering of the deceased, or for the anxiety, sorrow, or bereavement of those who survive.

If no such person or class of persons exists as that specified in the statute as the beneficiary of the recovery, no action can be maintained, and in order to maintain the action the existence of the beneficiary and the pecuniary loss must be alleged and proved. Railway Co. v. Needham, 3 C. C. A. 129, 52 F. 371, 373; Dickins v. Railroad Co., 23 N.Y. 158; Drake v. Gilmore, 52 N.Y. 389; Trafford v. Express Co., 8 Lea, 96, 111; Blake v. Railway Co., 10 Eng. Law & Eq. 437, 443, 444; Safford v. Drew, 3 Duer, 627, 635, 640; Railway Co. v. Morris, 26 Ill. 400, 403; Burke v. Railroad Co., 10 Cent. Law J. 48; Duckworth v. Johnson, 4 Hurl. & N. 653; Railroad Co. v. Swayne, 26 Ind. 477; Perry v. Railroad Co., 29 Kan. 420; Railway Co. v. Cutter, 19 Kan. 83.

The first statute in Kansas relative to this right of action is now paragraph 4518 of the General Statutes of that state for 1889, and it was passed by the legislature in 1868. That statute gave the right of action, provided that it might be brought by the personal representative of the deceased, and declared for whose exclusive benefit the damages recovered should inure, and how they should be distributed among the beneficiaries. Thus the law stood in Kansas until 1889, when the legislature passed the act which is now paragraph 4519 of the Kansas General Statutes, which simply provides that the widow or next of kin may bring the action if there is no personal representative of the deceased. When the original statute was passed it was within the power of the legislature of that state to refuse to allow any one to recover damages for the negligent killing of another, to give to every one who suffered any losses on that account the right to recover them, or, in its discretion, to select certain persons or classes of persons whose losses so occasioned might be recovered. Obviously, if this original act, which gave the right of action, specified the persons for whose benefit the recovery could be had, then no damages could be recovered on account of losses sustained by any persons or class of persons not thus named. The rights of the latter must in that event still be governed by the common law as they were before the statute was enacted, and the maxim, 'expressio unius est exclusio alterius,' must exclude them from the benefits of the action. Bearing in mind the established rules to which we have adverted, let us now consider whether the Kansas statutes gave the right to recover any damages in this action for the losses sustained by the husband through the death of the wife. To determine this question we are called upon to consider but a single clause of the statutes. The last clause of the original section which gave the right of action provides that 'the damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.' Paragraph 4518, supra. This subject is not mentioned in any other part of the statutes. What, then, is the effect of this clause on the right of the husband to prove and recover for his losses in this action? The statute is not ambiguous. It is not the subject of construction. It declares without doubt or question that the widow and children, if there are any, shall have the exclusive benefit of all the damages recovered, and that these damages shall be distributed among them in the same proportions as is the personal property of the deceased; but that, if there is neither widow nor child, then the next of kin shall receive the damages, to be distributed among them in the proportions in which they would receive the personal estate in that event. In other words, the statute declares that, if there are any persons of the first class, the damages must be paid to them exclusively, and no one in the second class can receive any share of them.

An elaborate argument has been made to show that this widower is one of the next of kin of his deceased wife. If that were so, it would not be material in the determination of this question. If he were of the next of kin, the loss which he sustained by the death of his wife would not be recoverable in this action, because he would then belong to the second class named in the statute; and there are at least two persons of the first class--the two children in being--who are entitled to all of the damages.

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