Baltimore & O.S.W.R. Co. v. Carroll, 25346.

• Decision Date: 02 October 1928
• Docket Number: No. 25346.,25346.
• Parties: BALTIMORE & O. S. W. R. CO. v. CARROLL.
• Court: Indiana Supreme Court

200 Ind. 589

163 N.E. 99

BALTIMORE & O. S. W. R. CO.

v.CARROLL.

No. 25346.

Supreme Court of Indiana.

Oct. 2, 1928.

Appeal from Jennings Circuit Court; John R. Carney, Judge.

Action by Lula A. Carroll, administratrix of the estate of Guerney O. Burtch, against the Baltimore & Ohio Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.McMullen & McMullen, of Aurora, for appellant.

Montgomery & Montgomery, of Seymour, and Harry C. Meloy, of North Vernon, for appellee.

MARTIN, J.

This action was brought on February 20, 1918, in the Jackson circuit court, by Guerney O. Burtch, against the railroad company, to recover damages for personal injuries suffered by him on October 24, 1917, as a result of the company's negligence, while he was engaged in assisting to unload a heavy ensilage cutter from a freight train at Commiskey, Ind.

From a verdict and judgment, rendered May 28, 1918, in Burtch's favor in the sum of $8,000, the railroad company appealed to this court, where the judgment was affirmed March 14, 1922. Baltimore & O. S. W. R. Co. v. Burtch (1922) 192 Ind. 199, 134 N. E. 858.

Burtch, who was injured because of the breaking of a defective skid, was caught and crushed by the falling ensilage cutter. Three ribs were broken, and paralysis resulted from an injury at the lower part of the dorsal vertebræ. He had no control of his legs, bladder, bowels, and other organs and parts of his body below the waist, was able to sleep only by the aid of hypodermic injections, could do no labor, and required the attention of a nurse. He died from these injuries February 10, 1921, and appellee, his widow, was appointed administratrix of his estate, and was substituted as a party in the proceedings that have followed. (Appellee's name was changed to Carroll by her marriage about three years after Burtch's death.)

On application of the railroad company, the Supreme Court of the United States, by certiorari to this court, reversed the judgment January 7, 1924, B. &. O. S. W. R. Co. v. Burtch (1924) 263 U. S. 540, 44 S. Ct. 165, 68 L. Ed. 483, holding (1) that uncontradicted evidence established the character of the shipment of the ensilage cutter as interstate; (2) that such evidence prevailed over the special findings and the general verdict; (3) that the unloading of the interstate shipment by the employees of the carrier was so closely related to interstate transportation as to be practically a part of it: and (4) that therefore the case should be governed by the Federal Employer's Liability Act (Act April 22, 1908, 35 Stat. at L. 65, c. 149), and the Act of 1910 amendatory thereto (45 USCA §§ 51-59), see infra, and not by the state law, and in that view it should have been submitted to the jury. The court also held (5) that the authority of the conductor of a freight train to employ a bystander to assist in unloading heavy freight may be derived from custom and the emergency or exigency of the occasion; and (6) that the liability of an interstate carrier for an accident suffered by a part owner of a heavy article of freight while assisting, as the carrier's employee, in unloading it from the car, was not affected by the existence of a rule filed by the carrier with the Interstate Commerce Commission, requiring owners of such articles, under stated conditions, to unload them, since the rule did not affect the relations between the carrier and its employees,but must be observed only to prevent discrimination among shippers, and failure to enforce it was no part of the cause, but was merely an attendant circumstance of the accident.

Pursuant to the mandate of the Supreme Court of the United States, this court reversed the judgment of the Jackson circuit court and directed that a new trial be granted. B. & O. S. W. R. v. Burtch (1924) 194 Ind. 701, 142 N. E. 865. This was done, and on March 5, 1924, the appellee administratrix filed her amended complaint in three paragraphs, each praying for damages for the injuries sustained by Burtch in his lifetime and by the appellee, his administratrix, for herself and for their two children, age 3 and 5 years, by his death.

The first paragraph, which did not go to the jury, charges a cause of action under the Indiana Employers' Liability Act (Acts 1911, c. 88; section 9432 et seq. Burns' 1926), the second is an action at common law, and the third is based upon the Federal Employers' Liability Act, supra. The appellant filed an answer in four paragraphs-the first a general denial; the second alleging that the cause of action did not accrue within two years next before the commencement of this action;¹ the third alleging that so much of the cause of action as is based on the death did not accrue within two years; and the fourth alleging that decedent was a part owner of the ensilage cutter, and was required to unload the same by a rule of the appellant, approved by the Indiana Public Service Commission and the Interstate Commerce Commission. The issues were closed in the Jackson circuit court by replies in general denial to the second, third, and fourth paragraphs of answer, and the cause was then sent on a change of venue to the Jennings circuit court, where a trial by jury resulted in a verdict and judgment for appellee on March 18, 1925, in the sum of $15,000.

The appellant's motion for a new trial was filed April 11, 1925, and overruled June 1, 1925. An appeal to this court was perfected on August 28, 1925, the cause was transferred to the Appellate Court on February 26, 1926, for want of jurisdiction under section 1, c. 201, Acts 1925 (section 1356, Burns' 1926), and retransferred to this court on January 13, 1927, under section 15, c. 247, Acts 1901 (section 1351, Burns' 1926); that court having been unable to arrive at a result concurred in by four of its judges.

Appellant has assigned a number of alleged errors. Some of these have been waived in the preparation of its brief, and some present questions that were settled adversely to appellant on the former appeal. Only two questions of law arise which require discussion here: (1) Is the action for (a) the injury or (b) the death of Burtch barred by the statute of limitations because the amended complaint thereon was not filed within two years? (2) Are the facts proven such as show as a matter of law an assumption of risk by appellee's decedent which bars a recovery?

[1] Section 293, Burns' 1926, provides that, in case one who has obtained a judgment for personal injuries, from which there has been an appeal and reversal, dies before a new trial is had, his claim shall survive, and may be prosecuted on behalf of his estate.

By Act April 5, 1910, 36 U. S. Stat. at L. 291, c. 143 (which amended Act April 22, 1908, by adding thereto section 9), it is provided that any right of action given by the act to a person suffering injury shall survive to his personal representative for the benefit of the widow, children, etc., “but in such cases there shall be only one recovery for the same injury.” The effect of this amendment is to permit and require all damages, both to decedent by reason of the injury and to the beneficiaries by reason of the death, to be recovered in one action. 17 C. J. 1187; Northern Pac. R. Co. v. Maerkl (1912) 198 F. 1, 117 C. C. A. 237;Missouri, etc., R. Co. v. Wulf (1913) 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Can. 1914B, 134, and note; Kansas City, etc., R. Co. v. Leslie (1915) 238 U. S. 599, 35 S. Ct. 844, 59 L. Ed. 1478;Great Northern R. Co. v. Capital Trust Co. (1916) 242 U. S. 144, 37 S. Ct. 41, 61 L. Ed. 208, L. R. A. 1917E, 1050;St. Louis, etc., R. Co. v. Craft (1915) 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160;Moffett v. Baltimore, etc., R. Co. (1914) 220 F. 39, 135 C. C. A. 607; 18 R. C. L. 864; notes, 47 L. R. A. (N. S.) 82; Ann. Cas. 1914C, 182.

Where additional or amended paragraphs of complaint are filed after the lapse of the statutory limitation which are founded upon the same transaction as that sued on in the original complaint, and which merely expand or amplify what has already been alleged, they relate back to the commencement of the action, at which time the statute of limitations was arrested, and they are not affected by the intervening lapse of time. Chicago & E. R. Co. v. Dinius (1913) 180 Ind. 596, 103 N. E. 652;Cleveland, etc., R. Co. v. Bergschicker (1904) 162 Ind. 108, 69 N. E. 1000;Chicago, etc., R. Co. v. Bills (1889) 118 Ind. 221, 20 N. E. 775. And an amendment to a complaint alleging that the parties were engaged in interstate commerce, but alleging no different state of facts, does not introduce a new or different cause of action, and hence may be made although the limitation period had elapsed. Missouri, etc., R. Co. v. Wulf, supra; Curtice v. Chicago, etc., R. Co. (1916) 162 Wis. 421, 156 N. W. 484, L. R. A. 1916D, 316, writ of certiorari denied 247 U. S. 510, 38 S. Ct. 578, 62 L. Ed. 1242;New York, etc., R. Co. v. Kinney (1922) 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294;Smith v. Atlantic, etc., R. Co. (1913 C. C. A.) 210 F. 761;Wilson v. Denver, etc., R. Co. (1920) 68 Colo. 105, 187 P. 1027; 18 R. C. L. 860; note, Ann. Cas. 1914C, 1029. It follows that the action for the injury and for the death of Guerney O. Burtch, sued on in appellee's amended complaint, is barred by neither the federal nor state statutes of limitation.

In some of the cases holding that an amendment to the complaint alleging that the cause of action arose in interstate commerce might be made after the period of statutory limitation has expired, it appears that the court considered that such facts had been imperfectly alleged in the original complaint, Seaboard, etc., R. Co. v. Renn (1916) 241 U. S. 290, 36 S. Ct. 567, 60 L. Ed. 1006, and from those cases it might be argued that an amendment alleging the interstate nature of the action could not be made in the entire absence in the original complaint of facts showing the same. But from the later ...