Chi., R. I. & P. Ry. Co. v. Holliday

• Decision Date: 09 January 1915
• Docket Number: Case Number: 2314
• Citation: 1915 OK 17,45 Okla. 536,145 P. 786
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. et al. v. HOLLIDAY et al.

1915 OK 17

145 P. 786

45 Okla. 536

CHICAGO, R. I. & P. RY. CO. et al. v. HOLLIDAY et al.

Case Number: 2314

Supreme Court of Oklahoma

Decided: January 9, 1915

Syllabus

¶0 1. DEATH--Right of Action--Statute. Sections 4611 and 4612, Wilsons Rev. & Ann. St. 1903 (sections 5281 and 5282, Rev. Laws 1910), were adopted according to their terms, and were put in force and effect by section 2, art. 25, of the Schedule to the Constitution.

2. MASTER AND SERVANT--Injury to Servant--Federal Employers' Liability Act--Application. The act of Congress of June 11, 1906 (34 Stat. 232, c. 3073), is repugnant to the Constitution of Oklahoma and is locally inapplicable, and was not extended to and put in force in this state by section 2, art. 25, of the Schedule to the Constitution.

3. APPEAL AND ERROR--Death--Scope of Review--Federal Question--Right of Action--What Law Governs. Plaintiffs and defendants in the trial court proceeded upon the theory that sections 5281 and 5282, Rev. Laws 1910, were controlling. There is nothing in the pleadings or the evidence, or otherwise in the record, to bring the case within the purview of the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, secs. 8657-8665), or to show that defendants relied upon said latter act or directed the attention of the trial court to same. No federal question was sought to be raised until after the case was brought to this court. Held, that the case is controlled by the state law, supra, Held, further, that defendants cannot successfully raise a federal question for the first time in this court on appeal.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by Magnolia Holliday and another against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiffs, and defendants brings error. Affirmed.

C. O. Blake and Stevens & Myers, for plaintiffs in error.

Al. J. Jennings and Stuart, Cruce & Gilbert, for defendants in error.

RIDDLE, J.

¶1 This action was commenced April 29, 1909, in the district court of Comanche county, by Magnolia Holliday, for herself and as next friend of Joseph Holliday, Jr., to recover damages from the Chicago, Rock Island & Pacific Railway Company, W. J. Duvall, and A. H. Reed, for the wrongful death of Joseph L. Holliday, Sr., the husband of Magnolia, and the father of Joseph L. Holliday, Jr. The petition, as filed in the lower court, is substantially as follows: That defendant railway company is a railroad corporation, organized and existing under and by virtue of the laws of the state of Illinois, and as such was, at all times hereinafter mentioned, operating a line of railway into the counties of Comanche and Grady, state of Oklahoma. That said railway company maintained a division and railway yard for moving, switching, and handling engines, coaches, box cars, flat cars, and dumping cars at the city of Chickasha. That defendant W. J. Duvall is a citizen of Grady county, and was an employee and servant of said railway company at the time of the injury and death of Joseph L. Holliday, Sr., and that said Duvall was acting in the capacity of yardmaster in said defendant company's yards at Chickasha, and as such yardmaster had charge of and directed the movement and switching from place to place the trains, cars, etc., in defendant company's yards. That defendant A. H. Reed is a citizen of Grady county, and was, at all times mentioned herein, an employee and servant of defendant company, acting in the capacity of engine foreman. That it was a part of his duty as such engine foreman to move, switch, and cause to be moved, and switched from place to place, in the yards of defendant company at Chickasha, the cars, engines, etc., belonging to and used by said defendant company. That plaintiff Magnolia Holliday is a citizen of Comanche county. That she was the legal wife of Joseph L. Holliday, Sr., deceased, who, at the time of his death, was an employee and servant of defendant company, working as a brakeman on a work train belonging to defendant company. That plaintiff Joseph L. Holliday, Jr., an infant under the age of 21 years, the son of Joseph L. Holliday, Sr., now deceased, and Magnolia Holliday, resides in Comanche county. That at the time of the death of said Joseph L. Holliday, Sr., he was a resident of the state of Oklahoma, and that Joseph L. Holliday, Sr., died intestate in this state, and since his death no administrator or personal representative of him has been appointed, and plaintiff Magnolia Holliday brings this suit for the sole benefit of herself and Joseph L. Holliday, Jr., her infant child. That on the day of September, 1908, defendant company, W. J. Duvann, A. H. Reed, and the employees and servants of said defendant company directed and caused to be sent out a work train or construction train belonging to defendant company, under the control of Conductor P. R. Pressley, to construct and repair defendant company's track on the Pauls Valley branch of defendant company, under the control and management of the agents, servants, and employees of said defendant. That while said train was returning to the city of Chickasha, over the railroad track belonging to defendant, it collided with two or more flat cars belonging to defendant railway company, wrecking the caboose of said work train above described. That said caboose, so wrecked as aforesaid was in an old, worn, and dilapidated condition. That said flat cars aforesaid were, by the gross neglect, carelessness, and mismanagement of defendant company, W. J. Duvall, and A. H. Reed, their servants, agents and employees, placed on defendant company's railroad track, known as the Pauls Valley branch, and said defendants, their agents, servants, and employees, negligently, carelessly, and with gross mismanagement, placed the said flat cars on said railroad track, having full knowledge that the work train was out on the railroad track, known as the Pauls Valley branch of defendant company's railroad, and that said work train would have to come into the yards of said defendant company, situated in the city of Chickasha, upon which said defendants, their agents, servants, and employees, had so negligently and carelessly placed the said flat cars aforesaid. That said collision was caused by the gross neglect, carelessness, and mismanagement of the defendants aforesaid, their agents, servants, and employees. That by reason of the gross neglect, carelessness, and mismanagement of defendants, its agents, servants, and employees, as aforesaid, in causing said collision, Joseph L. Holliday, Sr., an employee and servant of defendant company on said work train, on the day of September, 1908, was maimed, crushed, and killed. That by means of the mismanagement, carelessness, and gross neglect of said defendants, their agents, servants, and employees in placing the aforesaid flat cars on the railway track, causing the collision aforesaid, said Joseph L. Holliday, Sr., was maimed, crushed, and killed, and the said death of the said Joseph L. Holliday was without any default, neglect, or want of care on the part of said Joseph L. Holliday, Sr. That by reason of the death of said Joseph L. Holliday, Sr., so caused as aforesaid, the plaintiffs Magnolia Holliday and Joseph L. Holliday, Jr., an infant under the age of 21 years, are damaged in the sum of $ 50,000.

¶2 To this petition, defendants on January 24, 1910, each filed the following demurrer:

"And now comes the said defendant and demurs to the petition of plaintiffs filed herein, for the reason and upon the ground: (1) That the court is without jurisdiction. (2) That the plaintiffs have no legal capacity to sue. (3) That there is a defect of parties plaintiff and a defect of parties defendant. (4) That several causes of action are improperly joined. (5) That the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against this defendant."

¶3 After the court overruled this demurrer, to which exception was saved, defendant filed its answer, consisting: (1) Of a general denial; (2) a plea of contributory negligence, in that deceased, at the time of his death, was acting in violation of certain rules and regulations of defendant company, and that the injuries resulted from the violation of such rules.

¶4 On February 7, 1910, the cause was tried to a jury. A demurrer to the evidence was overruled, exceptions saved, and a verdict returned in favor of plaintiffs for $ 20,000. Motion for new trial was filed and overruled, and defendants bring error to secure a reversal of said judgment.

¶5 The petition in error contains the following assignments: (1) The court erred in overruling defendant's demurrer to plaintiffs' petition filed herein. (2) The court erred in overruling defendant's demurrer to the evidence. (3) The court erred in overruling defendants' motion for new trial.

¶6 Plaintiffs in error will be designated defendants, and defendant in error as plaintiff, in accordance with their position in the trial court.

¶7 The right of action for death wrongfully caused by another did not exist at common law; hence, if it exists in this state, it must be by reason of some constitutional or statutory provision.

¶8 It is the contention of plaintiffs that sections 4611 and 4612, Wilson's Ann. St. (sections 5281 and 5282, Rev. Laws 1910), were adopted and put in force by virtue of section 2, art. 25, of the Schedule to the Constitution (section 366, Williams' Const.), and were in force at the time of the institution of this suit. Defendant contends in this court that the act of Congress of June 11, 1906, known as the "Employers' Liability Act," was in force in the territory of Oklahoma at the time of the admission of the state, and that said act rendered void and superseded the provisions of the territorial statute relied upon by plaintiffs, and that said act of Congress, being the only law in force in the territory of...