Bussey v. Gulf & S.I.R. Co.

• Decision Date: 27 January 1902
• Parties: CHARLES M. BUSSEY ET AL. v. GULF & SHIP ISLAND RAILROAD COMPANY
• Court: Mississippi Supreme Court

31 So. 212

79 Miss. 597

CHARLES M. BUSSEY ET AL. v. GULF & SHIP ISLAND RAILROAD COMPANY

Supreme Court of Mississippi

January 27, 1902

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

This was an action brought by the father, mother, brother and sister of Thomas B. Bussey, a brakeman, who, while in the service of the appellee, was, as averred in the declaration thrown from a train and killed in consequence of a derailment resulting from a loose and sunken joint in the rails of appellee's track, the damages claimed being such as the jury might award, taking into consideration all damages of whatever kind to the decedent.

The defendant (appellee here) demurred to the declaration, and raised the point that as the decedent was an employee of a corporation, the right and remedy were regulated by ch. 66 laws 1898, which did not authorize suit by a brother or sister, and only authorized suit by a parent for the death of a child, the decedent being an adult. The demurrer was sustained, and the plaintiff not asking to amend, judgment was rendered for the defendant, whereupon this appeal was prosecuted to the supreme court by the plaintiffs.

Reversed and remanded.

Alexander & Alexander, for appellant.

The apparent conflict between ch. 65 and ch. 66, laws 1898, all disappears if we consider each in the light of its history and purposes. Prior to the constitution of 1890, actions for injuries causing death were governed by what is known as the "Lord Campbell Act," adopted into our statutes and modified in several respects. It appeared as sec. 1510, acts 1880. It did not seek to define what wrongful or negligent acts would give rise to an action. It left the question of defendant's liability to be determined by the general law regulating the relation of master and servant. It did not in any way qualify the fellow servant rule. It took the law as to negligence as it found it, and merely dealt with the question as to who should bring the suit and the measure of damages. These matters were then wholly within the legislative power to regulate, and nothing in the constitution of 1890 abridges this power. In cases where under the general law, liability for negligence arose, the legislature could then as well as now regulate the remedy and the measure of damages. It had full power to abolish or modify the fellow servant rule. The fact that the constitution instead of mere legislative enactment worked this modification, was not because the constitution makers had any more power to do it or the legislature any less power, but merely because successive legislatures had voted against the modification. The constitution, as was said in White v. Railway Co., enlarged the rights of plaintiffs, and added new grounds of liability for negligence. (72 Miss. 16.) As to these new grounds, the right which is created, it assumed to give the remedy. It provided for the first time in our jurisprudence that in certain cases of injury by fellow servants, the employer should be liable, and gave this new right of recovery to the legal or personal representative. Section 193 did not take away any right existing under the general law, or any remedy existing under the "Lord Campbell Act." To show that the constitutional scheme made for the new causes of action could exist and consist with the existing general and statutory law, § 1510 of the code of 1880 is brought forward into the code of 1892, and the constitutional and statutory schemes are both preserved intact and without a thought of conflict. Nothing in the constitution limited the right of the legislature to deal with the whole question of liability for negligence, and who may recover. The only restriction comes from the fact that the legislature cannot take away the right conferred by sec. 193. It can add to that right; indeed, sec. 193 seems to contemplate that the legislature may regulate the remedies. It does not provide that only the legal representatives may assert the right created by the constitution, but only that the legal or personal representatives "shall have the same right and remedies as are allowed by law to such representatives of other persons." In the Hunter case, the legislature had not further dealt with the question, but it was held that only the administrator could sue where the right was one created by the constitution. We then have a case where there is a statute, and a constitutional provision, independent and not in conflict, with a perfect right to legislate as to both, as to the remedy and measure of damages.

Section 663, code 1892, provided that actions for death, where, under the general law, there was liability, should be in the name of certain designated relatives, and that the damages should only be such as resulted to the person suing. This statute was amended by the act of 1896, and was brought forward as ch. 65 of the laws of 1898. It contained two or three important amendments; one to meet the decision in the Prendergast case, which denied damages where death was instantaneous; and the other to enlarge the damages, so that instead of recovering only such damages as resulted to the party suing, the damages recovered, however the suit might be brought, should be "all damages of whatever kind to any and all parties interested in the suit."

The third change was to meet and remedy the law that two actions might coexist, one to the relative and one to the administrator, and to limit suits by the executor to cases where there should be no near relative. Section 2 of this act expressly provides that it shall apply in favor of employees, and to all personal injuries received by employees where death ensues. This provision is and was constitutional, viewed as a part of the "Lord Campbell Act," and applied to cases arising under the general law; only when it might be sought to apply it to injuries caused by fellow servants would the question arise as to whether it would be controlled by sec. 193 of the constitution. In other words, ch. 65 is made to have as wide an operation in favor of employees as it can have in view of the constitution.

Chapter 66 is the bringing forward of sec. 193 of the constitution enlarged as to the remedy. It meets the difficult point had in the Hunter case--that is, that on the face of sec. 193, without additional legislation, only the personal representatives could sue. It extends the remedy to certain relatives designated. It did not provide expressly that the relatives suing should recover all damages of every kind to the person suing and to the decedent, but limited it to damages to the person suing. This was, perhaps, under the mistaken notion that something in the constitution limited the power to extend the remedy, and directs who should be entitled to the damages, or else it was thought that the provision that "the legal representatives shall have the same rights and remedies as are allowed to representatives of other persons" would make the remedy and measure of damages as broad as that conferred by ch. 65. However that may be, ch. 66, which deals solely with the new liabilities added and created by the constitution, limits recovery by a relative to the damage that relative sustained. But it does not deal with or in any way affect the large class of cases resting on the general law of negligence, unaffected by the constitution, and which, as to liability, is governed by the general law, and, as to the remedy and measure of damages, is governed by ch. 65. This, however, harmonizes both statutes, relieves them of any apparent conflict, and gives to each its beneficent office, the one regulating cases arising under the general law, which form the rule, and the other dealing with cases created alone by the constitution, which form the exception.

This case, like the White case and the Wooley case, rests on the common law duty to furnish employees safe machinery and appliances. The Wooley case arose before the act of 1896, and as Wooley was an employee, and sec. 193 of the constitution had not been enlarged as to the remedy, the wife based her right on § 663, code 1892, and the court assumed throughout that she had this right. It was never suggested that her right, which rested on § 663, did not exist because her husband was an employee. If the view held by the court below here is correct, she would have had no right of action at all, for there is as much apparent conflict between sec. 193 of the constitution and § 663 of the code as there is between the two acts of 1898. In the Wooley case, the court holds, first, that the railroad company is liable in not providing a safe railway; and, secondly, that under § 663 the widow could maintain the action. Now, ch. 65, laws of 1898, extends this right to sue to all relatives, gives only one suit, and includes the damages of all kinds to the relatives as well as to the decedent himself. It is not suggested that the legislature did not have the right to thus enlarge § 663. If it did not have this latter right, then the provisions of ch. 66, as to who may sue for the death of an employee, are void, and cannot repeal ch. 65. If it did have this right, then it must be assumed to be dealing only with cases created by the constitution, which is incorporated in totidem verbis in the act. To hold that these statutes were in conflict would be not only to overlook their scope and purposes, but convict two legislatures of folly in enacting almost in uno flatu statutes mutually destructive of each other. We insist that the action is properly brought here, and that we have a right to recover the damages resulting to the decedent himself in the loss of his life; in other words, damages to the decedent unlimited by any rule as to the instantaneous death.

The court below held that...