Brooks v. Southern Pac. Co.

• Decision Date: 31 December 1906
• Parties: BROOKS v. SOUTHERN PAC. CO.
• Court: U.S. District Court — Western District of Kentucky

148 F. 986

BROOKS v. SOUTHERN PAC. CO.

United States Circuit Court, W.D. Kentucky.

December 31, 1906

Wm. M Smith, J. E. Torrence, and S. C. Bloss, for plaintiff.

Alexander P. Humphrey, for defendant.

Wm. R Harr, amicus curiae.

EVANS District Judge.

Morris S. Brooks, a citizen and resident of Kansas, but employed by the defendant as a fireman on one of its locomotives engaged in interstate commerce in the state of Nevada, having been killed in the latter state on June 16, 1906, by the negligence of certain of his fellow servants in the same occupation, the plaintiff, N. C. Brooks, his mother, was qualified as his personal representative by the probate court of Cowley county, Kan. Thereafter she, alleging herself to be a citizen of Kansas, instituted this action against the defendant, a citizen of Kentucky, seeking to recover $25,000 in damages for the injury to her son, resulting from the alleged negligence of the defendant's employes. The defendant filed a general demurrer to the petition, and the questions thus raised have been elaborately argued.

The Attorney General of the United States, conceiving, we suppose, that the United States had some interest in the case, sent one of his special assistants to intervene on behalf of the government. When the application was made, it was objected by the defendant that this was a litigation strictly inter partes, with which the United States had no concern. The court found it difficult to see how any other conclusion could be reached, and, indeed, in all such cases neither of the parties really interested might desire to be affected by the contentions of any outside person. But, while it is not thought that such a practice should be especially encouraged, inasmuch as there is no statute or law which authorizes or directs the Attorney General to support by arguments in the courts generally the legislation of Congress where the United States is not a party, nor its interests involved in any tangible way, yet the court, desiring light upon the very important questions involved in the case decided to hear the special assistant of the Attorney General as a friend of the court; but, as both of the parties in interest in the litigation might desire to combat his views if regarded as conflicting with the grounds and arguments upon which they, respectively might desire to rest the case, the court thought it best that he should speak first, and he did so at length.

Some question was also made as to whether a personal representative qualified in Kansas could sue in any other state without authority from such other state, and some cases would seem to support that contention, but in view of the act of Congress, to which we shall presently allude, and other somewhat obvious considerations, we have concluded that this contention, which was indeed not much pressed, should not at present prevail. Kansas was the domicile of the deceased fireman, and the defendant does not operate its railroad within that state. Being his domicile at the time of his death, that fact, per se, gave jurisdiction to the court there to appoint his administratrix. He was killed in Nevada, and the defendant is a citizen of Kentucky. In neither of those states is it probable that the deceased fireman had any assets to give jurisdiction to the courts of either state for a similar purpose. A mere claim for damages for a tort does not seem to be assets for such purpose. So that from necessity, and in order that the plaintiff may have a remedy which could be enforced against a corporation which did not have a residence in the state of domicile, we are inclined, for the purposes of s suit based on the act of Congress, to treat the plaintiff as the personal representative of Morris S. Brooks within the purview of that act, especially as we think the case ought to be decided upon broader grounds than those which would confine it to the legality of the appointment of the plaintiff. It was expressly conceded at the hearing by plaintiff's counsel that she must succeed, if at all, upon the provisions of the act of Congress relating to the liability of common carriers to their employes, approved June 11, 1906 (34 Stat. 232, 233), which weill presently be set out in full. The plaintiff's case, in short, must stand or fall with that act. If it be a valid exercise of legislative power, the plaintiff's right to recover damages is clear if the averments of the petition be true. Otherwise the demurrer must be sustained. The questions involved are therefore of very great and possibly far-reaching importance, and have deserved and received our most careful consideration.

The act referred to is as follows:

'An act relating to liability of common carriers in the District of Columbia and territories and common carriers engaged in commerce between the states and between the states and foreign nations to their employes.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another, or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employes, or, in the case of his death, to his personal representative for the benefit of his widow and children, if any; if none, then for his parent; if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employes, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works.

'Sec. 2. That in all actions hereafter brought against any common carriers to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. All questions of negligence and contributory negligence shall be for the jury.

'Sec. 3. That no contract of employment, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employe, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employe: Provided, however, that upon the trial of such action against any common carrier the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employe, or, in case of his death, to his personal representative.

'Sec. 4. That no action shall be maintained under this act, unless commenced within one year from the time the cause of action accrued.

'Sec. 5. That nothing in this act shall be held to limit the duty of common carriers by railroads or impair the rights of their employes under the safety-appliance act of March second, eighteen hundred and ninety-three as amended April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three. ' Act June 11, 1906, c. 3073, 34 Stat. 232, 233.

To determine the questions before us, it is important clearly to understand the exact scope and purport of the act. While the title is not controlling in the construction of an act of Congress, it may aid us in our investigation to note that the title in this instance labels the act as one relating to the liability of certain common carriers to their employes. This label, so to speak, quite accurately describes the contents of the measure, for it in fact does nothing more than fix the liability of certain common carrier engaged in trade or commerce between the several states shall be liable to any of its employes, of, in the case of his death, to his personal representative for the benefit of his widow, etc., for all damages which may result from the negligence of any of its officers, agents or employes, or by reason of any defect or in sufficiency due to its negligence in respect to its cars etc. This section obviously abrogates the familiar doctrine of the courts, founded upon considerations of public policy, that an employe when entering the service of his employer is conclusively presumed to have assumed the ordinary risks of the occupation, including those which may result from the negligence of his fellow servants. The second section imposes, in complicated form, the doctrine of comparative negligence, so as greatly to modify the ordinary judicial rule that a person cannot recover if, by his own negligence, he so contributed to his own injury as that without it that injury would not have occurred. Other sections further change existing laws in respects which have no present bearing on the discussion. If the act did no more than change the law as administered in the courts of the United States, and so as to control only cases pending therein, the right to do so by appropriate legislation might not be open to question, as mere judicial rules founded on the common law or upon considerations of public policy, but having all the force of law, are no more sacred than legislative enactments, which may be altered or repealed at the will of Congress; but its title and first section elaborately and...