Cincinnati, N.O. & T.P. Ry. Co. v. Bonham

• Decision Date: 28 November 1914
• Citation: 171 S.W. 79,130 Tenn. 435
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. BONHAM.
• Court: Tennessee Supreme Court

171 S.W. 79

130 Tenn. 435

CINCINNATI, N. O. & T. P. RY. CO. v. BONHAM.

Supreme Court of Tennessee.

November 28, 1914

Certiorari to Court of Civil Appeals.

Action by Naomi Bonham against the Cincinnati, New Orleans & Texas Pacific Railway Company. A judgment for plaintiff was affirmed on appeal to the Court of Civil Appeals, and defendant brings certiorari. Reversed and remanded.

Davis Staples & Jones, of Wartburg, for plaintiff.

Wright & Jones, of Knoxville, and Wright & Morris, of Wartburg, for defendant.

BUCHANAN J.

Mrs Naomi Bonham sued the railway company for damages. A jury in the circuit court found the issues in her favor, and assessed her damages at $10,000, and judgment was rendered in her favor for that sum. The company moved for a new trial, but its motion was overruled, and it prosecuted an appeal to the Court of Civil Appeals. There the judgment of the circuit court was affirmed, and the case is before us on the petition for certiorari of the company and its assignment of errors.

Plaintiff's original declaration contained this averment in respect of the capacity and right upon which her suit was predicated:

"Plaintiff avers that the said T. F. Bonham left surviving him the plaintiff, Naomi Bonham, his wife, and who is now his widow and next of kin, and this suit is brought by plaintiff as the widow and next of kin of said T. F. Bonham deceased, for her own use and benefit. Wherefore plaintiff sues the defendant company for $25,000 damages, and demands a jury to try the issues."

In no other capacity and right than as above set out did the plaintiff by any averment of her original declaration predicate her right to recover a judgment against the defendant in this cause.

To the original declaration, the defendant railway company interposed its plea of the general issue, to wit:

"That it is not guilty of any of the matters, wrongs and injuries in plaintiff's declaration alleged." The plaintiff joined issue in short upon the defendant's plea.

Later in the progress of the cause, after leave of court had and obtained, the plaintiff filed an amended declaration, and in this declaration, in respect of the capacity and right in which the plaintiff sued, there is the same averment above copied from the original declaration, and upon no other right does plaintiff base her suit, and in no other capacity does she sue, in her amended declaration, than as set out above in her original declaration. To the amended declaration the railway company also interposed its plea of not guilty.

The damages claimed by plaintiff are averred to arise on account of the death of her husband, T. F. Bonham, which occurred on April 28, 1911, in Morgan county, Tenn., in tunnel No. 23, located between Glen Mary on the north and Nemo on the south, through which tunnel the railway company's track was laid, over which track its trains were operated. At the time of his death T. F. Bonham was in the employ of the railway company, discharging the duties of an electrical signalman; his duties being to keep in proper order and repair all of the electric signals between Glen Mary and Nemo stations on the railroad line of the railway company, defendant.

In plaintiff's original declaration she averred that on the 28th day of April, 1911, and for many years previous to that time, the defendant was and now is a foreign corporation, owning and operating a line of railroad or railway from Cincinnati, Ohio, through the states of Kentucky, Tennessee, Alabama, and Mississippi, to New Orleans, La.; said company being engaged in the transportation of freight trains and passenger trains loaded with freight and passengers from Cincinnati, Ohio, through the states of Kentucky, Tennessee, Alabama, and Mississippi, to New Orleans, in the state of Louisiana, as well as between all intermediate stations on said line of road between Cincinnati, Ohio, and New Orleans, La., said company being engaged in both interstate and intrastate commerce. Said line of railroad passed through Morgan county, Tenn., and defendant company has offices and agents in said Morgan county, Tenn., and defendant company runs trains of cars, both passenger cars and freight cars, over its said line of road and through Morgan county, Tenn.; said trains of cars running between Cincinnati, Ohio, and New Orleans, La., and being thus engaged in transporting both passengers and freight between these points, and between all intermediate stations on said road between these points, and said defendant company being thus engaged in both interstate and intrastate commerce, said trains of cars being under the control and management of conductors, engineers, brakemen, and firemen, employed by defendant ant company. Following the foregoing averment of the declaration, it proceeds to aver in substance the fact that the interstate and intrastate trains of the company were regulated and governed by a system of electric signal stations established along the line of railway and used in directing and controlling the operation of the trains of cars of the railway company in the conduct of its interstate and intrastate business, and then in the declaration follows an averment of the facts attendant upon the death of plaintiff's husband, averred to have been due to the negligent operation of a train, on the date aforesaid, and while he was on the track of the defendant company, and engaged in the discharge of his duties as electrical signalman, whose duties, from the pleadings and evidence in the record, appear to have been as heretofore stated.

At the close of plaintiff's evidence, the railway company moved the court to peremptorily instruct the jury to return a verdict in favor of the defendant railway company. This motion the court overruled, to which action the railway company excepted, and thereupon the railway company declined to introduce any evidence, and the court charged the jury with the result already stated.

Among the assignments of error on behalf of the railway company in this court, the first raises the question that the railway company was entitled to the peremptory instruction in the trial court upon the ground that plaintiff, in the capacity and right in which she sued, was not entitled to maintain this suit, because under its facts it falls within the terms and provisions of an act relating to the liability of common carriers by railroads to their employés in certain cases, approved April 22, 1908 (35 Stat. 65, c. 149, U.S. Comp. St. 1913, §§ 8657-8665), because under that act the remedy which it gives is conferred alone upon the personal representative of the deceased employé for the use of the beneficiaries named in that act.

We think the insistence of the railway company is well made. In American Railroad Co. v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879, the action was originally brought by persons falling within the class of beneficiaries under the act aforesaid and not by the personal representative of the deceased. The question that an action under the act of Congress could not be maintained by any person except the personal representative of the deceased was made by the railway company both by demurrer and by motion to dismiss the action and direct verdict in favor of the defendant, but that defense was overruled by the trial court, and its action in respect thereof came under review before the Supreme Court of the United States. Before that court it was urged on behalf of the plaintiffs that the action was properly brought in the name of the only persons for whose benefit any recovery could be had, but it was held by the court that the words of the act would not yield to such a liberal construction, that they were too clear to be other than strictly followed, that they (the words of the statute) gave an action for damages to the person injured, or in case of his death to his or her personal representative; and said the court in its opinion:

"It is true that the recovery of the damages is not for the benefit of the estate of the deceased, but for the benefit of the surviving widow or husband and children. But this distinction between the parties to sue and the parties to be benefited by the suit makes clear the purpose of Congress. To this purpose we must yield, even if we could say, as we cannot, that it is not a better provision than to give the cause of action to those in relation to the deceased. In the present case it looks like a useless

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