Tune v. Louisville & Nashville Railroad Company

• Decision Date: 31 October 1963
• Docket Number: Civ. A. No. 2903.
• Citation: 223 F. Supp. 928
• Parties: Bettie Lois TUNE, Administratrix of the Estate of Willie Joe Davis, deceased, Plaintiff, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Corporation, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

223 F. Supp. 928

Bettie Lois TUNE, Administratrix of the Estate of Willie Joe Davis, deceased, Plaintiff, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, a Corporation, Defendant.

Civ. A. No. 2903.

United States District Court M. D. Tennessee, Nashville Division.

October 31, 1963.

T. Arthur Jenkins, Manchester, Tenn., for plaintiff.

David M. Keeble, of Hooker, Keeble, Dodson & Harris, Nashville, Tenn., for defendant.

WILLIAM E. MILLER, Chief Judge.

Plaintiff has brought suit in this court as administratrix of the estate of Willie Joe Davis, deceased, for death benefits arising under the Federal Employer's Liability Act, Title 45, Sec. 51, U.S.C.¹ (herein referred to as FELA). Deceased worked for defendant railroad (L & N) and was killed in Dalton, Georgia on April 13, 1959. At the time of his death deceased was survived by his legal wife, Alberta Smith Davis, and two legitimate minor children born to her, living in Franklin County, Tennessee. Plaintiff alleges that deceased, at the time of his death and some years prior thereto, had been living with her in Murfreesboro, Rutherford County, Tennessee, and left three minor illegitimate children, born to her, and dependent upon him for their support.

On June 5, 1959 Alberta Davis was appointed administratrix of the estate of deceased by the County Court of Franklin County. On the same day she accepted a draft from L & N in the amount of $13,510.00 and without court approval signed a release

"* * * of all claims, demands, or causes of action of every character whatsoever, which I or the estate of Willie Joe Davis, deceased, have or has as a result of injuries to and loss of life and damage to the property of said Willie Joe Davis * * *"

Subsequently plaintiff was appointed administratrix of the estate of deceased by the County Court of Rutherford County, Tennessee, and thereafter instituted this suit as personal representative of the deceased for the use and benefit of his widow and five minor children. In her amended complaint plaintiff asserted that the release signed by Alberta Davis was not binding upon the minor children as it was not approved by any court, because it was fraudulently induced, and because on its face it purports to release only her rights and the rights of the deceased's estate. Defendant has moved for summary judgment. Since the validity of plaintiff's appointment as administratrix is not challenged by the motion, only two issues are raised:

1. Are the illegitimate children entitled to the benefits conferred by Title 45, Section 51, U.S.C.?

2. Is the release entered into by the widow a bar to the action brought on behalf of any or all of the dependents of the deceased?

It is not necessary to the disposition of the defendant's motion for summary judgment to decide whether "children" are to be determined as a matter of state or federal law.² If they are to be determined under federal law they would be included. See: Middleton v. Luckenbach S. S. Co., 70 F.2d 326 (2d Cir. 1934) and Civil v. Waterman S. S. Corp., 217 F.2d 94 (2d Cir. 1954). Likewise, if they are to be determined as a matter of state law they would be included for the reasons stated hereafter.

In looking to state law there are two preliminary questions: (1) the law of what state? and (2) what part of the applicable state's law?

Here the decedent was injured and died in Georgia. Under state wrongful death actions, substantive rights are determined according to the law of the place of injury, lex loci delicti. Nashville & C. R. Co. v. Eakin, 46 Tenn. 582 (1869); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 43 S.W.2d 698 (1934). If Congress has relinquished to the individual states its right to determination of familial relationships, then from the language used in DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), it would appear that the law of the state where the accident occurred would not necessarily be applicable.

"To decide who is the widow or widower of a deceased author, or who are his executors or next of kin, requires a reference to the law of the State which created those legal relationships." At page 580, of 351 U.S., at page 980 of 76 S.Ct., 100 L.Ed. 1415 (emphasis supplied).

The Court in the DeSylva case went on to say that there was no controversy as to which state law controlled, for there California was the only state involved. Presumably, had the domicile of the father and that of the child differed the question would then have been raised.

On the other hand, in Seaboard Air Line Ry. v. Kenney, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762 (1916), the Court quoted from the lower court decision:

"The question is, who was the `next of kin' at the time of such death in the State where the wrongful death occurred?" At page 492, of 240 U.S., at page 459 of 36 S.Ct., 60 L.Ed. 762.

and then said:

"It was held that next of kin for the purpose of the recovery under the act of Congress were the next of kin as established by the law of the State where the right to recover obtained." At page 492 of 240 U.S., at page 459 of 36 S.Ct., 60 L.Ed. 762 (emphasis supplied).

However, in that case the only state concerned was North Carolina as the deceased had been domiciled in North Carolina at the time of his death, and had been killed there.

The predominant consideration here is the legal relationship between these children and their putative father. The burden of caring for them will fall on the state in which they reside. Any obligation of support or other legally recognized relationship between them and their putative father in this case must arise under the law of Tennessee, the state with the paramount interest in the matter. In this respect the state of Georgia has no interest or concern. Its only connection is by virtue of the fact that the deceased was killed in Georgia. Since the FELA is national in its scope, the fact that the employee was killed in Georgia should not require a result different from that which would have obtained had the decedent been killed in Tennessee. Accordingly, Georgia law should not be deemed controlling, although from a cursory examination of the law of Georgia it appears that there as a matter of state law, illegitimate children would not be entitled to recover under the FELA.

Next must be determined what part of the law of Tennessee should be considered controlling. In the DeSylva case the Supreme Court held that disposition of the copyright was:

"really a question of the descent of property, and we think the controlling question under state law should be whether the child would be an heir of the author." At page 582 of 351 U.S., at page 981 of 76 S.Ct., 100 L.Ed. 1415.

However, this is not controlling as to the FELA. The Copyright Act is concerned with the continuation or transmission of a federally created property right. There the author had a statutory right during his lifetime. It is this right which is being devolved upon certain named beneficiaries. Their right is clearly dependent upon and a derivative of his right. On the other hand, the FELA creates two rights — one for the benefit of an injured employee during his lifetime but which does not survive his death; the other, an entirely new right in the beneficiaries to compensate them for their loss upon his death. The FELA is not a "survival act." The right of action which accrues to the beneficiaries is based on the injury to them, not to the deceased, and is measured by the amount of loss suffered by them.

At common law there was no cause of action for wrongful death, and the cause of action for injuries received did not survive the death of the injured party. Lord Campbell's Act (9 and 10 Victoria) provided:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding etc.

"Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought." (from note 1, p. 69 of Michigan Cent. R. R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 195, 57 L.Ed. 417 (1912).

The Federal Employer's Liability Act is fashioned after Lord Campbell's Act. "The distinguishing features of that act are identical with the act of Congress of 1908 FELA * * *." Michigan Central R. R. v. Vreeland, supra, 227 U.S., at page 70, 33 S.Ct. at page 196, 57 L.Ed. 417. Lord Campbell's Act has been construed, not as permitting the survival of the deceased's cause of action for his injuries, but rather as creating a new cause of action in the personal representative of the deceased.

"It will be evident that this act does not transfer this right of action to his representative, but gives to the representative a totally new right of action, on different principles." Blake v. Midland Ry. Co., 18 Q.B. 109.

"A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived; an action which * * * is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who under such circumstances suffers pecuniary loss." Seward v. The Vera Cruz, 10 App. Cases 59. (Both cases quoted in the Vreeland case 227 U.S. at pages 69 and 70, 33 S.Ct. at pages 195-196, 57 L.Ed. 417).

The Supreme Court has held that...