Dillon v. Great Northern Ry. Co.
| Decision Date | 23 March 1909 |
| Citation | 100 P. 960,38 Mont. 485 |
| Parties | DILLON et al. v. GREAT NORTHERN RY. CO. |
| Court | Montana Supreme Court |
On Rehearing, April 29, 1909.
Appeal from District Court, Flathead County; J. E. Erickson, Judge.
Action by Winifred Dillon and Mary E. Dillon and others, minors, by their guardian, Winifred Dillon, against the Great Northern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.
I Parker Veazey and W. N. Noffsinger, for appellant.
D. F Smith and Walsh & Nolan (T. J. Walsh, of counsel), for respondents.
This action was brought by Winifred Dillon in her own right, and as guardian of her minor children, against the Great Northern Railway Company to recover damages for the alleged wrongful killing of Thomas Dillon, the husband of Winifred Dillon and the father of the minor children. The cause was submitted to the district court upon an agreed statement of facts. The facts agreed upon, so far as necessary to be considered on this appeal, are that Thomas Dillon was employed as assistant roadmaster by the defendant, which is a railroad company engaged as a common carrier of freight and passengers between St. Paul and Seattle; that on September 20, 1906, while Dillon was properly riding in the caboose of a freight train east-bound from Whitefish, the caboose in which he was riding was run into by another east-bound train, "and, by reason of said collision, the said Thomas Dillon was instantaneously and immediately killed, and did not live or survive for a second of time after said accident; that said collision and the resultant instantaneous killing of the said Thomas Dillon was due to the negligence and carelessness of employés of said defendant railway company, who were fellow servants of the said Thomas Dillon; *** that said collision, resulting in the instantaneous killing of said Thomas Dillon, was not in any manner, or to any extent whatever, due to the negligence of the said Thomas Dillon, or of said defendant railway company." From a judgment rendered and entered in favor of the plaintiffs, the defendant railway company appeals.
1. It was a rule at common law that, if one person was injured by the wrongful act of another, he had a right of action against the wrongdoer for damages sustained by him: (a) If the injured party died before bringing his action, the cause of action literally died with him; (b) if he brought his action, but died before judgment, the action abated with his death; (c) if the injuries were occasioned by the negligence of his fellow servant, the injured party could not recover from the common employer, if that fact appeared. The rule is recognized and enforced in this country generally; in some of the states as a rule of the common law, while in others it is embodied in statutes. However, in practically every state the rule has been modified by abolishing subdivisions (a) and (b), and substituting in lieu thereof provisions by which, in case of the death of the injured party, his heirs or personal representatives may prosecute his right of action, and recover for the benefit of his estate. These statutes are commonly designated "survival statutes." In some of the states the rule is further modified by permitting recovery from the common master by one servant whose injuries are occasioned by the negligence of a fellow servant. Statutes making this qualification are generally referred to as "fellow-servant statutes." The above rule of the common law, as modified by our general survival statute (section 6494), and our fellow-servant statute (sections 5251, 5252, Rev. Codes), has been recognized and enforced in this state. Every survival statute presupposes the existence of a cause of action in favor of the injured party. Such a statute does not create a new cause of action, but only carries forward the right which the injured party had before his death.
2. It was also a rule of the common law, generally speaking, that for the death of one person caused by the wrongful act of another there was not any remedy by civil action. Because of the harshness of this rule the English Parliament in 1846 enacted a statute (St. 9 & 10 Vict. c. 93), generally known as "Lord Campbell's Act." This act is the model after which a like statute has been enacted in nearly every state in this Union. While our statutes may vary from the English act in some minor particulars, they are all framed with the same general purpose in view, viz., to give to certain kindred of the deceased a right of action for damages which they sustain by reason of the death of the deceased. Our statute is found in section 6486 of the Revised Codes, and while it bears slight resemblance to the English statute, the general purpose is the same.
To mention the fact is sufficient to call attention to the marked distinction between an action prosecuted under the common-law rule first above mentioned and one prosecuted under Lord Campbell's act. In the first case the injured party seeks compensation for his mental and physical pain and suffering, for medical attention, for loss of time, and for decreased earning capacity. In the second case the kindred seek compensation for such portion of the deceased's earnings as would have come to them had he lived, and, possibly, for the loss of companionship and the like. In the first case the damages sought are the damages which the injured party himself sustained. In the second case the damages sought are those which his kindred sustained.
But to avoid the defense that Dillon's injuries resulted from the negligence of his fellow servants, this action is prosecuted under the provisions of our fellow-servant statute above. It is an act of the Ninth Legislative Assembly (Laws 1905, p. 1), and provides:
The act is carried forward into the Revised Codes as sections 5251 and 5252. It may be an open question whether the Legislature intended to create a new cause of action, or only intended to abolish the defense of the negligence of a fellow servant. But, assuming that it was the intention to create a new cause of action, our first inquiry then is: In whose favor does such cause of action arise? It is argued by counsel for respondents that it arises in favor of the heirs, and, but for their earnest contention, we would deem the answer to this question so manifest from the statute itself as not to require serious consideration. In the first instance the title of the act indicates the purpose of the legislation. The title reads: "An act to determine the liability of persons or corporations operating railways or railroads in this state for damages sustained by employés thereof, and to declare void contracts restricting such liability." The avowed purpose is to provide for determining the liability of railroad companies to their employés for damages sustained by the employés, not for damages sustained by their heirs. The first section of the act emphasizes this view. It provides that the railroad company shall be liable for all damages sustained by any employé, and, practically to conclude argument upon this question, it provides that "no contract which restricts such liability shall be legal or binding." Counsel for respondents, however, seem to rely chiefly, if not altogether, upon the second section; but we are unable to find any suggestion here which sustains their view. This section seems to us exceedingly plain. It does not mention any new cause of action. It only refers to the right of action.
What right of action? Clearly the right of action recognized by the first section. The expressions "such employé" and "injury or damage so sustained" either refer to the same subjects in the first section, or they are absolutely meaningless. That these expressions and "the right of action" do refer to the kindred subjects in the first section we entertain no doubt. This second section is clearly a survival statute, and was intended for nothing else.
The manifest purpose of the whole act is to enable an employé of a railroad company to recover damages from the company for injuries inflicted upon him by reason of the negligence of a fellow servant, and, in case death results from such injuries after the cause of action has accrued, then to enable his heirs or personal representatives to prosecute the action to judgment. If it was intended to create a new cause of action in favor of the heirs for damages sustained by them, the Legislature certainly did not give any intimation of such intention in the title of the act, and securely concealed such intention in the body of the statute. If such intention was expressed in the body of the statute, it is exceedingly doubtful whether that part of the statute would be effective since the title does not cover that feature at all; but we hold that such intention is not expressed either in the title or body of the act. The act does not create a...
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