Bixler v. Pennsylvania R. Co.

• Decision Date: 04 January 1913
• Docket Number: 430.
• Citation: 201 F. 553
• Parties: BIXLER et ux. v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Middle District of Pennsylvania

201 F. 553

BIXLER et ux. v. PENNSYLVANIA R. CO.

No. 430.

United States District Court, M.D. Pennsylvania.

January 4, 1913

William M. Hain, Wm. H. Middleton, and Samuel H. Orwig, all of Harrisburg, Pa., for plaintiffs.

Charles H. Bergner and Lyman D. Gilbert, both of Harrisburg, Pa., for defendant.

WITMER District Judge.

Suit was brought by the plaintiffs, Isaac P. Bixler and Hermina E Bixler, his wife, against the defendant, the Pennsylvania Railroad Company, under the act of Congress of April 22, 1908 (35 Stat. 65, c. 149 (U.S. Comp. St. Supp. 1911, p. 1322)) and supplements, generally known as the 'Employer's Liability Act,' to recover for the death of plaintiffs' son, who at the time of the accident resulting in his death, was in the employ of the defendant engaged, as alleged, in interstate traffic. The accident occurred July 17, 1910, on defendant's road near Marietta, Pa., when the engine, in which plaintiffs' deceased was riding, while rounding a sharp curve and running at a high speed, was derailed, killing the employe instantly.

This action was instituted June 12, 1912. Plaintiffs' statement having been filed, October 31, 1912, defendant entered an appearance and pleaded the general issue, 'not guilty.' The case came on for trial December 10, 1912 and after jury was sworn the defendant moved to abate the plaintiffs' action for the following reasons: (1) That by the record it appeared that the employe, alleged to have been killed, died July 17, 1910, and the present action was instituted June 12, 1912, by, for, and on behalf of the father and mother of said decedent, and not by the personal representatives of the deceased; that no action, for the death of such employe, has, within two years from the day the cause of action accrued, been instituted by the personal representatives, as required by the act of Congress known as the 'Employer's Liability Act.' (2) That by the records in the court of common pleas of Dauphin county there appears to have been entered, in an action between the same parties and for the same cause of action a judgment against the plaintiffs-- a compulsory nonsuit. Whereupon the plaintiffs replied denying the defendant's right to abate, offering to amend by substituting the personal representatives, Isaac P. Bixler and Hermina E. Bixler, administrators of Samuel E. Bixler, deceased. The defendant opposed the proposed amendment, and the questions raised were fully argued.

While the plea of the pendency of a prior suit in another jurisdiction has in some courts been allowed, it was decided in Stanton et al. v. Embry, Adm'r, 93 U.S. 548, 23 L.Ed. 983, that such prior suit in a state court is not a bar to a suit in a Circuit Court of the United States; nor is the action barred by the entry of a compulsory nonsuit. A judgment of nonsuit is not a judgment on the merits, and therefore it is no bar to another suit upon the same cause of action. 23 Cyc.pp. 1136, 1137. It does not determine the rights of the parties, and is no bar to a new action. Homer v. Brown, 16 How. 354, 14 L.Ed. 970. 'A new trial, upon which nothing was determined, cannot support a plea of res adjudicata, or have any weight as evidence at another trial. ' Manhattan Life Insurance Co. v. Broughton, 109 U.S. 125, 3 Sup.Ct. 100, 27 L.Ed. 878.

The act, removing the common-law obstacles, under which the plaintiffs seek to recover, in part, reads as follows:

Sec. 1. 'That every common carrier by railroad while engaging,' etc., 'shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such common carrier,' etc.

Sec. 6. 'That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.'

Some argument was indulged regarding the exact time when the cause of action accrued, whether when the employe was injured and died, or when proper parties appeared who were competent and empowered to bring suit. That the cause of action accrued when the employe died from the injuries suffered in the employer's service is not in doubt. The cause of action for damages for the death of the employe, Bixler, was perfected and immediately accrued when he was killed. Dodge v. Town of North Hudson (C.C.) 188 F. 492. Hence a cause of action, if otherwise perfect, existed for such death when suit was instituted. The important question remaining is whether the action brought by the parents of the deceased in consequence thereof may be maintained or amended.

In the event of death of an employe, the cause of action shall inure 'to his or her personal representatives, for the benefit of the surviving widow, or husband, children of said employe and, if none, then for the said employe's parents,' etc. In the case before us the recovery, if any, is for the benefit of the...