C., N. O. & T. P. R. Co. v. Claybourne's Admr.

• Decision Date: 22 March 1916
• Citation: 169 Ky. 315
• Court: Kentucky Court of Appeals
• Parties: Cincinnati, New Orleans & Texas Pacific Railway Company v. Claybourne's Administrator.

169 Ky. 315

Cincinnati, New Orleans & Texas Pacific Railway Company v. Claybourne's Administrator.

Court of Appeals of Kentucky.

Decided March 22, 1916.

Appeal from Mercer Circuit Court.

E. H. GAITHER and JOHN GALVIN for appellant.

JOHN W. RAWLINGS, ROBERT HARDING, EMMET PURYEAR and E. M. HARDIN for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

In this action for damages for personal injuries, arising under the Federal Employers' Liability Act, Allen Claybourne's administrator recovered of the Cincinnati, New Orleans & Texas Pacific Railway Company a verdict and judgment for $2,000.00. The company appeals.

Briefly stated, the facts are as follows: Claybourne was a section hand and had been in the company's employ for a number of years. On the morning of the accident, which occurred in the month of November, 1912, he and other section hands, while engaged in tamping the track at a point south of Burgin, were directed by the section foreman to remove a hand car from the track for the purpose of preventing a collision with an approaching passenger train. The car was removed and Claybourne and the other hands stationed themselves a few feet from the track and waited for the train to pass. The train was moving at a speed of about forty-five miles an hour, and as the engine passed the men several pieces of coal fell from the tender. One of these pieces struck Claybourne behind the ear and injured him. His wife claims that she also found a soft place in the top of his head. Thereafter Claybourne worked intermittently until some time in February, when he was laid off indefinitely and never returned to work. In June following he was adjudged insane and sent to the Eastern Kentucky Hospital at Lexington, where he died in November, 1913.

This suit was originally brought in Claybourne's lifetime by his committee, the State Bank & Trust Company of Harrodsburg. The petition alleged that plaintiff had a wife and minor child dependent on him. After Claybourne's death, the State Bank & Trust Company qualified as his administrator and filed a petition for a revivor. The petition for revivor made the allegations of the original petition a part thereof and alleged that the original action survived to plaintiff as the personal representative of the decedent "for the benefit of his estate," and that plaintiff was entitled to have the action revived and to prosecute same in its name as administrator. The company's demurrer to the petition for revivor was overruled and the following order entered:

"It is now adjudged by the court plaintiff is entitled to the relief sought in the petition for revivor, and it is ordered that this action be, and the same is now, revived in the name of State Bank & Trust Company, as administrator of Allen Claybourne, and shall proceed to trial upon the pleadings and issues heretofore made between plaintiff and defendant."

The company insists that the petition for revivor stated no cause of action, because it is alleged that the action for the personal injury to Claybourne survived to the plaintiff as representative of Claybourne "for the benefit of his estate." In this connection it is argued that the trial court had no authority to revive the action for the benefit of the estate, but only for the benefit of the decedent's widow and minor child. That the action was revived for the benefit of the decedent's estate and not for the benefit of his widow and child, it is claimed, is shown by the fact that the instructions authorized a finding in favor of the administrator and did not require the jury to apportion the damages between the wife and child.

Under the Federal Employers' Liability Act of April 22nd, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp., 1911, p. 1322), the cause of action given the injured employe did not survive his death, but died with him. Michigan Central Railroad Co. v. Vreeland, 227 U. S. 58, 57 L. Ed. 417. But Congress remedied this defect by adding to the act section 9, which provides: "That any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe," etc.

The real cause of action against the company was stated in the original petition. This cause of action survived, under the above section, to the decedent's representative for the benefit of his widow and minor child. The original petition alleged that plaintiff had a dependent wife and minor child. The petition for revivor reaffirmed each and every allegation contained in the petition. It is clearly established by the evidence that the decedent was survived by a widow and minor child, who were entitled to whatever recovery might be had. Since the circumstances show a clear right of revivor and that the revivor was properly ordered, we are not inclined to reverse the judgment on the mere ground that the petition for revivor failed to allege in terms that the decedent was survived by a widow and minor child and to ask a revivor for their benefit, or that the order of revivor itself did not provide that the action was revived for their benefit.

In this same connection it is insisted that the instruction on the measure of damages is erroneous, because it did not authorize the jury to apportion the damages between the widow and child, and a reversal is asked for this reason and for the further reason that no apportionment of the damages was actually made. In support of this position the company relies on the statement in Gulf, C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 176, 57 L. Ed. 785, that "though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as show no pecuniary loss."

In the more recent case of Central Vermont Ry Co. v. White, 238 U. S. 507, 59 L. Ed. 1433, the U. S. Supreme Court, after adverting to the fact that the quoted language was part of the court's holding that it was error to refuse to charge that the married daughter was not a dependent of her deceased father, and that the language should be read in the light of the record then before the court, distinctly pointed out that there was nothing in that record which would support a ruling that a general verdict was invalid, or that the verdict could be set aside because it failed to fix the amount each beneficiary was to receive. In further discussing the question the court said:

"Under Lord Campbell's act (9 & 10 Vict., chap. 93, sec. 2), and in a few of the American states the jury is required to apportion the damages in this class of cases. But even in those states the distribution is held to be of no concern to the defendant, and the failure to apportion the damages is held not to be reversible error (Norfolk & W. R. Co. v. Stevens, 97 Va. 631 (1) 634, 46 L. R. A. 367, 34 S. E. 525; International & G. N. R. Co. v. Lehman, ___ Tex. Civ. App. ____, 72 S. W. 619), certainly not unless the defendant can show that it has been injured by such failure. The Employers'...