Anderson v. Louisville & N. R. Co.

• Decision Date: 03 February 1914
• Docket Number: 2,392.
• Citation: 210 F. 689
• Parties: ANDERSON v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F. 689

ANDERSON v. LOUISVILLE & N.R. CO.

No. 2,392.

United States Court of Appeals, Sixth Circuit.

February 3, 1914

Plaintiff's decedent, Ray Farmer, was in the employ of the railroad company as a brakeman on its line between Etowah, Tenn., and Corbin, Ky. He was a resident of Whitley county, Ky., and the railroad company is a corporation of that state. January 1 1909, Farmer was killed in the yards of the company at Knoxville; and on the 5th of the month, his widow, Sallie Farmer, was appointed in Whitley county as administratrix of his estate. Afterward (the date not appearing) the county court of Knox county, Tenn., upon proof that at the time he was killed Farmer had some money and certain chattels of value on his person, appointed W. K. anderson administrator of the estate of the deceased. September 19, 1909, Anderson as such administrator, commenced suit in the Knox county circuit court against the railroad company to recover damages for the death. October 5, 1909, on petition of the railroad company, the cause was removed to the court below. January 10, 1910, the declaration was filed, alleging the interstate character and use of the railroad and of decedent's employment and work, and specific acts of negligence, as well as negligent omissions, of the railroad company, without fault of the decedent; setting out portions of the applicable federal Employers' Liability Act of April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)); and praying recovery of the amount ($15,000) mentioned in the summons sued out in the state court for the benefit of the widow, Sallie Farmer, and their two children aged respectively eight years and one year. The sufficiency of the declaration was challenged in various ways. Demurrer was interposed on the ground that the Employers' Liability Act was unconstitutional; that under the facts alleged the act was inapplicable; and that upon this theory no recovery could be had at common law, because the death occurred through the negligence of a fellow servant. Hearing upon the demurrer was by consent postponed until the constitutional validity of the federal act then involved in a suit pending in the Supreme Court should be decided. February 22, 1912, the demurrer was overruled. May 8, 1912, the railroad company filed a plea of ne unques administrator alleging that the county court of Knox county, on May 7, 1912, had revoked the appointment of Anderson as administrator and ordered his letters of administration to be canceled. May 25th demurrer to this plea was sustained because the plea did not allege that the judgment of the county court was final. Further pleas, the second and third, were then interposed, setting up the prior appointment of the widow as administratrix of the estate, and alleging that the right of action, if any, passed to her. June 21, 1912, demurrer to these pleas was overruled. Later in the same month a fourth plea was filed by the railroad, alleging that the circuit court of Knox county had, on appeal, affirmed the decree of the county court removing Anderson as administrator; but demurrer to this plea was also sustained for failure to allege that such judgment of affirmance was final. July 15, 1912, replication was filed by the administrator to the second and third pleas mentioned, alleging in substance that his appointment as administrator was made and his suit commenced at the request of Sallie Farmer, widow and the principal beneficiary of Ray Farmer, deceased, and that for these reasons no suit other than his had been commenced. August 3, 1912, demurrer to the replication was sustained on the ground that under the act of Congress no right of action existed 'in the plaintiff as the Tennessee administrator,' but that this right vested 'solely in the administratrix * * * appointed in Kentucky'; and, the plaintiff declining to make further replication to the second and third pleas, the suit was dismissed with costs, whereupon this proceeding in error was instituted.

Shields, Cates & Mountcastle, of Knoxville, Tenn. (C. T. Cates, Jr., of Knoxville, Tenn., of counsel), for plaintiff in error.

J. G. Johnson and J. B. Wright, both of Knoxville, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

The decisive question is whether, notwithstanding the previous appointment of the Kentucky administratrix, the Tennessee administrator can for the purposes of the suit be rightfully treated as the decedent's 'personal representative' within the meaning of that portion of the federal Employers' Liability Act, which in terms declares the railroad company 'shall be liable in damages' to the deceased employe's 'personal representative, for the benefit of the surviving widow * * * and children of such employe' (35 Stat.L. 65).

The most obvious features of this statute, which have present relevancy, are that in both structure and design it is remedial and the suit it authorizes is representative. The learned trial judge appears to have regarded the principle announced in American R.R. Co. v. Birch, 224 U.S. 547, 32 Sup.Ct. 603, 56 L.Ed. 879, as controlling. That case decides, because the law is so written, that such a suit shall be brought in the name of the employe's personal representative. It was there sought to maintain the suit in the names of the surviving widow and son, not in the name of an administrator, of the deceased; and so, we think, the present question was not involved. The reasons for requiring such a suit to be instituted in the name of a personal representative, rather than in the names of the beneficiaries, manifestly differ from any reason that would limit the right to maintain such an action in the name only of the personal representative, who may happen to be appointed at the last domicile of the deceased. The District Judge believed, as pointed out in the statement, that the right of action vested 'solely in the administratrix of said Ray Farmer first appointed in Kentucky. ' If there be error in this conclusion, it is because more importance was attached to the right of the representative in whose name the action must be prosecuted, and less to the rights of those for whose benefit an action is preserved, than the statute really intends. The dominant views of the District Judge may in substance be stated thus: (1) Congress could not have intended that 'a concurrent right of action should be vested' in each of a number of personal representatives, 'with the multiplicity of actions and endless confusion that would result therefrom'; and (2), since the general rule is that the place of a decedent's last domicile determines the probate jurisdiction to grant the principal letters of administration on his estate, the representative appointed at that place, and not one appointed in another state to administer assets there found, should be regarded as the only one entitled to maintain the suit. After all, the first of these views is an inference as to possible consequences of the act, rather than an interpretation of its language. And it is to be observed of both views that there is nothing in the act which explicitly clothes a domiciliary administrator with the exclusive right to maintain such an action; and it is by no means certain that such a restriction might not, simply through inability to obtain service of process upon the negligent employer at the last domicile of the deceased, cause greater inconvenience and hardship than could arise through distinct appointment of another administrator elsewhere and his prosecution of the suit. The statute employs the generic term 'personal representative,' and so describes a familiar class that would naturally include members that are ordinarily appointed in outside jurisdictions for legitimate objects of administration. In the absence then of express restriction to particular members of such a class, it can hardly be presumed that there was legislative apprehension of abuses from inclusion of the whole class. It is not suggested that abuses have arisen through unnecessary appointments and suits in the administration simply of estates; nor is it perceived why this situation should change merely because damages recovered here would belong to the beneficiaries instead of the estate, much less why possibility of abuses could be a true test of the right of plaintiff to maintain the instant suit. ^[1] In any event, there could be but one satisfaction. N. E. Mutual Life Ins. Co. v. Woodworth, 111 U.S. 138, 147, 4 Sup.Ct. 364, 28 L.Ed. 379; Southern Pac. Co. v. DaValle DaCosta, 190 F. 689, 696, 111 C.C.A. 417 (C.C.A. 1st Cir.). Further, there is no possibility of a multiplicity of suits in the present instance; for, as pointed out in the statement, the widow sanctioned the appointment of the plaintiff and his commencement and prosecution of the action, and in consequence suffered the time to expire within which she as administratrix could bring the suit

It should be observed that the proceeding, mentioned in the statement, which was commenced by the railroad in the county court of Knox county to remove the plaintiff as administrator, was taken to the Supreme Court of Tennessee, where the decree of removal was reversed (Anderson, Adm'r, v. L. & N.R.R. Co. (Tenn.) 159 S.W. 1086, decided October 11, 1913, and not officially reported); ^[2] but it is to be added that the court below assumed for the purposes of the case that Anderson's appointment was valid. ^[3]

It results that the plaintiff is in Tennessee as distinctly an independent personal representative of the deceased employe as the widow is or ever was in Kentucky; they derived their authority respectively from different sovereigns...