Anderson v. Burlington Northern, Inc.

Decision Date13 November 1972
Docket NumberNo. 72-1208.,72-1208.
PartiesKatherine ANDERSON, Plaintiff-Appellant, v. BURLINGTON NORTHERN, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

David C. Vigil, Denver, Colo. (Charles S. Vigil, Denver, Colo., on the brief), for plaintiff-appellant.

Winston W. Wolvington, Denver, Colo. (Wolvington, Dosh, DeMoulin, Anderson & Campbell, Denver, Colo., on the brief), for defendant-appellee.

Before BARNES*, HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The issue here to be resolved is whether a wife, whose husband has been injured in an accident covered by the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C. § 51 et seq., has a claim for damages against her husband's employer for her loss of consortium and for services rendered by her to her husband in connection with his disability. The trial court held that the wife had no such claim and accordingly dismissed the action. We agree.

In her amended complaint, Katherine Anderson, hereinafter referred to as the plaintiff, initially alleged that "this action involves an injury arising under the Federal Employers' Liability Act" and went on to allege that her husband, one A. C. Anderson, an employee of the Burlington Northern, Inc., was negligently injured by one of Burlington's agents acting within the course and scope of his employment and that in connection therewith Burlington had paid A. C. Anderson, plaintiff's husband, for his injuries thus sustained but had refused to pay her anything. In her first count, plaintiff prayed for damages in the sum of $50,000 for her loss of consortium and support from her husband. In a second count, plaintiff prayed for an additional $50,000 for nursing services rendered by her to her disabled husband.

In response to the amended complaint, Burlington filed a motion to dismiss for failure to state a claim upon which relief could be granted, alleging that the amended complaint showed on its face that plaintiff was attempting to recover damages arising from an incident which was covered by the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C. § 51 et seq. In this regard, it is Burlington's basic position that the Federal Employers' Liability Act provides the exclusive remedy for the injured employee and accordingly precludes the maintenance of an action of the type here asserted by plaintiff. It was on this state of the record that the trial court sustained Burlington's motion to dismiss and dismissed the action.

In our view, New York Central & Hudson River Railroad Company v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 61 L. Ed. 1194 (1917), is dispositive of the present controversy. There, a seventeen-year-old infant, relying upon the Federal Employers' Liability Act, recovered judgment for personal injuries suffered while employed by a railroad engaged in interstate commerce. Thereafter, the infant's father also recovered damages against the railroad for himself on account of expenses incurred by him for medical attention to his son and for loss of the latter's services. In reversing, the Supreme Court made the following pertinent comment:

"The court of errors and appeals ruled, and it is now maintained, that the right of action asserted by the father existed at common law and was not taken away by the Federal Employers\' Liability Act. But the contrary view, we think, is clearly settled by our recent opinions in New York C. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045, 37 Sup.Ct.Rep. 556 1917, and Erie Railroad Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057 37 Sup.Ct.Rep. 556, (decided May 21, 1917). There we held the act `is comprehensive and also exclusive\' in respect of a railroad\'s liability for injuries suffered by its employees while engaging in interstate commerce. `It establishes a rule or regulation which is intended to operate uniformly in all the states as respects interstate commerce, and in that field it is both paramount and exclusive.\' Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the state."

The purport of New York Central Railroad Company v. Winfield, supra, and Erie Railroad Company v. Winfield, supra, both of which are cited in, and form the basis for, Tonsellito, is that the liability of an interstate railroad carrier to its employees for personal injuries sustained while engaged in interstate commerce is regulated inclusively and exclusively by the Federal Employers' Liability Act and that because Congress fully covered the subject, no room exists for state regulation.

See also, Jess v. Great Northern Railway Company, 401 F.2d 535 (9th Cir. 1968), where a wife's claim for loss of consortium resulting from injuries sustained by her...

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8 cases
  • Dixon v. CSX Transp., Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 13, 1993
    ...New York C. & H.R.R.R. v. Tonsellito, 244 U.S. 360, 361-62, 37 S.Ct. 620, 620-21, 61 L.Ed. 1194 (1917); Anderson v. Burlington Northern, Inc., 469 F.2d 288, 290 (10th Cir.1972). Dixon, therefore, cannot recover under both FELA and North Carolina law.3 Upon Sally Dixon's death shortly after ......
  • Apitsch v. Patapsco & Back Rivers Railroad Co.
    • United States
    • U.S. District Court — District of Maryland
    • November 27, 1974
    ...97 L.Ed. 395 (1953); New York Central R.R. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045 (1917); Anderson v. Burlington Northern, Inc., 469 F.2d 288, 289 (10th Cir. 1972); Wiederhold v. Elgin, Joliet & Eastern Ry., 368 F.Supp. 1054, 1056 (N.D.Ind.1974); Pennsylvania R.R. v. Reeley,......
  • Boren v. Burlington Northern & Santa Fe Ry.
    • United States
    • Nebraska Court of Appeals
    • January 15, 2002
    ...household chores is not, as Burlington asserts, allowing an improper award for loss of consortium. Compare Anderson v. Burlington Northern, Inc., 469 F.2d 288 (10th Cir. 1972) (holding that FELA does not permit loss of consortium damages). The instruction did not allow the jury to award dam......
  • Bean v. Missouri Pacific R. Co.
    • United States
    • United States Appellate Court of Illinois
    • July 8, 1988
    ...(New York Central & Hudson River R.R. Co. v. Tonsellito (1917), 244 U.S. 360, 37 S.Ct. 620, 61 L.Ed. 1194; Anderson v. Burlington Northern, Inc. (10th Cir.1972), 469 F.2d 288); however, third party actions for contribution arising out of the FELA are governed by State law. (Shields v. Conso......
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