Denver & R. G. R. Co. v. Wilson

• Decision Date: 05 March 1917
• Docket Number: 8336.
• Citation: 163 P. 857,62 Colo. 492
• Parties: DENVER & R. G. R. CO. v. WILSON.
• Court: Colorado Supreme Court

163 P. 857

62 Colo. 492

DENVER & R. G. R. CO. v. WILSON.

No. 8336.

Supreme Court of Colorado, En Banc.

March 5, 1917

Error to District Court, Chaffee County; Charles A. Wilkin, Judge.

Action by Luticia Obedience Wilson against the Denver & Rio Grande Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

E. N. Clark, J. A. Marsh and R. G. Lucas, all of Denver, for plaintiff in error.

G. K Hartenstein, of Buena Vista, for defendant in error.

WHITE C.J.

Defendant in error, hereinafter referred to as plaintiff, recovered a judgment in damages against plaintiff in error on account of the death of her husband, George D. Wilson. The complaint alleged that defendant was a Colorado corporation and owned and operated a railroad 'in and through the state of Colorado'; that on the 6th day of October, 1912, it was engaged in building a temporary or 'shoofly' track around a freight wreck on its road near a designated station in this state, and, in the construction thereof, placed a quantity of giant powder upon the surface of two large rocks approximately 148 feet apart, on the line of the temporary track, and carelessly, recklessly, and negligently, without giving proper notice of its intention so to do, exploded the same; that plaintiff's husband was at the time an employé of the defendant and engaged in the performance and discharge of his duties as such employé, and was then and there, by one of such explosions, killed without fault on his part; that plaintiff was dependent upon her husband for support, and by reason of his death was damaged in the sum of $5,000, for which she asked judgment with interest from the date of filing the complaint. The answer admitted the corporate existence of the defendant, the nature and character of its business, the relationship of plaintiff to deceased, and his employment by defendant as alleged in the complaint, denied that the death of plaintiff's husband was caused by defendant's negligence, and alleged that it was due to his own negligence.

At the close of the evidence defendant questioned the right of plaintiff to maintain the action, and asked that the jury be instructed to the effect that if a cause of action existed under the facts and circumstances disclosed, it could be prosecuted only by the personal representative of deceased and not by plaintiff in her individual capacity. The requested instruction was refused, and, over the objection of the defendant, the cause submitted to the jury upon the theory that the state law controlled.

As no right of action existed at common law in any one to recover damages for the death of a person resulting through the negligence of another (Michigan Central R. R. Co. v Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas 1914C, 176), it is essential that the cause of action be based on some applicable statute. The complaint stated a cause of action under the state law, but there was a federal statute (35 Stat. 65, c. 149; 36 Stat. 291, c. 143) relating to the liability of railroads when engaged in interstate commerce, for the death, through their negligence, of any of their employés while engaged in such commerce, and it becomes necessary to determine which of these statutes is applicable to this case. The two statutes cover the same subject, are unlike in substantial respects, and cannot occupy the same field. This has been settled by the Supreme Court of the United States in numerous decisions. Second Employers' Liability Cases (Mondou v. N.Y., N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A. [N. S.] 44); Taylor v. Taylor, 232 U.S. 363, 34 S.Ct. 350, 58 L.Ed. 638; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156; Michigan Central R. R. Co. v. Vreeland, supra. In Mondou v. N.Y., N.H. & H. R. Co., supra, after sustaining the constitutionality of the statute, its effect upon state laws covering the same subject, is considered and determined in the following language on pages 53, 54, and 55 of 223 U.S., on page 176 of 32 Sup.Ct. [56 L.Ed. 327, 38 L.R.A. (N. S.) 44]:

'The third question, whether those regulations supersede the laws of the states in so far as the latter cover the same field, finds its answer in the following extracts from the opinion of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 :

'[4 Wheat. 405, 4 L.Ed. 579]: 'If any one proposition could command the universal assent of mankind, we might expect it would be this: That the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it, by saying, 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof, * * * shall be the supreme law of the land,' and by requiring that the members of the state Legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, 'anything in the constitution or laws of any state, to the contrary notwithstanding.''

'[4 Wheat. 426, 4 L.Ed. 579]: 'This great principle is, that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective states, and cannot be controlled by them.'

'And particularly apposite is the repetition of that principle in Smith v. Alabama, 124 U.S. 465, 473 [8 S.Ct. 564, 31 L.Ed. 508]: 'The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.' True, prior to the present act the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employés while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the states in the absence of action by Congress. Sherlock v. Alling, 93 U.S. 99 ; Smith v. Alabama, 124 U.S. 465, 473, 480, 482 [8 S.Ct. 564, 31 L.Ed. 508]; Nashville, etc., Railway v. Alabama, 128 U.S. 96, 99 [9 S.Ct. 28, 32 L.Ed. 352]; Reid v. Colorado, 187 U.S. 137, 146 [23 S.Ct. 92, 47 L.Ed. 108]. The inaction of Congress, however, in no wise affected its power over the subject. The Lottawanna, 21 Wall. 558, 581 ; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215 [5 S.Ct. 826, 29 L.Ed. 158]. And now that Congress has acted, the laws of the states, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is. Gulf, Colorado & Santa Fé Railway Co. v. Hefley, 158 U.S. 98, 104 [15 S.Ct. 802, 39 L.Ed. 910]; Southern Railway Co. v. Reid, 222 U.S. 424 [32 S.Ct. 140, 56 L.Ed. 257]; Northern Pacific Railway Co. v. Washington, 222 U.S. 370 [32 S.Ct. 160, 56 L.Ed. 237].'

Within the sphere it operates, the federal statute covers every actionable case of wrongful death of an employé; and within the sphere of its operation is necessarily paramount and exclusive. Therefore any regulation by the state, that in any material way conflicts with the paramount federal law, is noneffective. The state statute gives a right of action for the death of the deceased to his 'wife,' in the first instance, or, if he left none or she failed to sue within one year after his death, then to certain designated relatives, and in the event of no such designated persons, then to the next of kin of the deceased as may be dependent upon him for support; and further provides that every such action may be maintained by any such person entitled to sue for the use and benefit of the other or others entitled to sue, as well as for the plaintiff so suing, etc. Sections 2181, 2182, 2183, chapter 40 M. A. S. 1912. The federal statute, however, covers, inter alia, the subject of the liability of common carriers by railroad engaged in interstate commerce for the death of any of their employés while so engaged in such commerce by reason of 'the negligence of any officers, agents or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment of such railroad,' and gives a right of action to recover damages therefor solely to the personal representative of such deceased employé. Therefore, if the facts of a case bring it within the federal statute, the state statute is necessarily excluded by reason of the supremacy of the former under article 6 of the federal Constitution. Second Employers' Liability Cases, supra; Michigan C. R. Co. v. Vreeland, supra; St. Louis, etc., R. Co. v. Seale, supra.

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