Elliott v. Felton

• Decision Date: 02 December 1902
• Docket Number: 1,076.
• Citation: 119 F. 270
• Parties: ELLIOTT v. FELTON.
• Court: U.S. Court of Appeals — Sixth Circuit

119 F. 270

ELLIOTT v. FELTON.

No. 1,076.

United States Court of Appeals, Sixth Circuit.

December 2, 1902

Charles M. Cist, for plaintiff in error.

Edward Colston, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge.

This was an action to recover damages for the negligent killing of Simon Matthews, the intestate of the plaintiff in error. Deceased was a brakeman in the employment of the defendant and was killed in collision through the negligence of his own conductor. The court below, upon this conceded state of facts, instructed the jury that the deceased and his conductor were fellow servants, and that the defendant receiver was not liable for an injury of one fellow servant by another in the same common service. This instruction is assigned as error upon the ground that the collision occurred in Tennessee, and that the question of fellow servant was erroneously decided un er the law of Tennessee. Confessedly there is no statute in Tennessee defining fellow servant, or regulating the liability of an employer to his servant for the negligent acts of either the master or each other. So also, it is not disputed but that, if the question is one of general, and not local, law, the conductor in charge of a train is the fellow servant of a brakeman on the same train. Railroad Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85 44 L.Ed. 181. District Judge Evans followed this decision in the court below, and refused to be governed by Railroad Co. v. Spence, 93 Tenn. 174, 23 S.W. 211, 42 Am.St.Rep. 907, where it was held that the power of control exercised by the conductor over his train and its crew constituted him a vice principal, and not the fellow servant of a brakeman. Judge Evans is said to have erred in refusing to follow the Tennessee decisions as to the law of fellow servants, not because there is any statute regulating the subject upon which the decisions were based, but because this action, being one for negligent death of the deceased, is an action which would at common law have been extinguished by the death of the injured person, and is now prosecuted only by virtue of a Tennessee statute which prevents such extinguishment. Upon this premise it is insisted that every decision of the supreme court of Tennessee determining under what circumstances a liability exists for a negligent killing is a decision construing, interpreting, and applying the Tennessee survival statute, and for that reason a decision to be followed by this court as a decision construing a local statute. That the construction given to a statute of a state by the highest court of that state is to be regarded and followed by this court as a part of the statute itself is well settled. The construction of the Tennessee supreme court of the Tennessee statute prescribing precautions to be observed by railway companies in order to prevent accidents in the operation of trains, and holding that contributory negligence by the plaintiff was not a bar to an action based upon a nonobservance of the statute, was followed by this court as an obligatory determination of the meaning of the act. Byrne v. Railroad Co., 9 C.C.A. 666, 61 F. 605, 24 L.R.A. 693; Railroad Co. v. Roberson, 9 C.C.A. 646, 658, 676, 61 F. 592; Leffingwell v. Warren, 2 Black, 599, 17 L.Ed. 261; Bucher v. Railroad Co., 125 U.S. 582, 8 Sup.Ct. 974, 31 L.Ed. 795; Railway Co. v. McCann, 174 U.S. 586, 19 Sup.Ct. 755, 43 L.Ed. 1093. In the interpretation and construction of the Tennessee act providing for the survival of actions for the negligent death of a deceased person-- the act by virtue of which this action was brought-- we have never hesitated to follow the meaning placed thereon by the supreme court of the . state. Railway Co. v. Hooper, 35 C.C.A. 24, 92 F. 820; Sanders' Adm'x v. Railroad Co., 49 C.C.A. 56, 111 F. 708. The question, therefore, for decision here, is, not whether the construction of the Tennessee survival statute by the supreme court of Tennessee will be followed by this court as authoritative, but whether the decisions relied upon as an interpretation of that statute are in fact such.

The act in question was passed in 1851, and was carried into the Tennessee Code of 1858, being now section 4025, Shannon's code of Tennessee, and reads as follows:

'4025 (2291) 3130. Right of Action in Case of Injuries or Death.-- The right of action which a person who dies from injuries from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children, or to his personal representative, for the benefit of his widow or next of kin, free from the claims of creditors. (1851-52, ch. 17; 1871, ch. 78, sec. 1.)'

Sections 4026 and 4027 provide that the action may be brought by the personal representative of the deceased, or by the widow, or if no widow, then by the children. Section 4028 provides that, if the deceased had commenced an action, it may proceed after his death without revivor. Section 4029 is an amendment made by chapter 186 of the act of 1883, and reads as follows:

'4029. 3134. Measure of Damages.-- Where a person's death is caused by the wrongful act, fault or omission of another, and suit is brought for damages, as provided for by sections 4025 to 4027, inclusive, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received. (1883, ch. 186.)'

The contention of the plaintiff in error is that the act 'creates a liability on the part of the wrongdoer and in favor of the administrator unknown to common law;' that 'the liability exists solely by the will of the legislature of Tennessee. ' 'It is not,' says the very learned attorney for the plaintiff, 'a mere continuation of the common-law right of action for negligence which the deceased would have had if he had lived, and a removal of the bar which the common law interposed on the death of the injured person, as expressed in the maxim, 'Actio personalis moritur cum persona,' but it is an entirely new liability, and an entirely new cause of action. ' These statutes abrogating the common-law rule by which the right of action for a personal injury died with the person are of comparatively recent origin, and vary in important particulars. In Dennick v. Railroad Co., 103 U.S. 21, 26 L.Ed. 439, it was said:

'The questions growing out of these statutes are new, and many of them are unsettled. Each state court will construe its own statute on that subject, and differences are to be expected.'

1. The highest court of Tennessee has authoritatively construed the Tennessee act as not creating a new cause of action, but as simply preserving the decedent's right of action, which would otherwise be extinguished by his death. The original of these survival acts was the English act known generally as 'Lord Campbell's Act,' and the original of the American acts was that of New York, which latter act was subsequently copied by most of the American states. Both the English act and the New York act were peculiarly worded, and were construed as taking no account of the injury to the deceased in the damages recoverable, but only of the pecuniary loss of the persons entitled by the act to the benefit of the recovery. The Tennessee act does not copy either the New York or the English act, and has consequently received an entirely different interpretation. Thus, in one of the earlier cases under the act,-- that of Railroad Co. v. Burke, 6 Cold. 45, 49,-- it was said:

'The cause of action is the injury to Burke, and the right of action of the personal representatives is for that cause of action, and is the right of action Burke had, and could have prosecuted had he lived, and the damages recoverable are for that cause of action. The statutes of other states, which have been cited, * * * either by express terms or plain implication, give the next of kin a right of action or damages for the injury done them by the killing of the deceased. The Tennessee statute goes no further than to give the next of kin the damage that may be recovered by the personal representatives for the injury done his decedent.'

In a number of cases following this case of Railroad Company v. Burke it has been held that, unlike the English act, and those worded as that, the Tennessee act simply abrogates the artificial rule of the common law by which personal actions die with the person. Jones v. Littlefield, 3 Yerg. 133; Governor v. McMannus' Adm'rs, 11 Humph. 152; Hall v. Railroad Co., Thomp. Tenn. Cas. 204; Railroad Co. v. Prince, 2 Heisk. 580; Fowlkes v. Railroad Co., 9 Heisk. 829; Trafford v. Express Co., 8 Lea, 96, 102, 109; Railroad Co. v. Smith, 9 Lea, 470-474. In Fowlkes v. Railroad Co., cited above, it is said:

'If an action be brought by the party himself, and he then dies of the injury before judgment, the effect of the statute is to prevent an abatement, and to allow the cause to proceed, notwithstanding the death; but not on account of the death. The cause of the action was the injury. And in such cases the action, after the death, is prosecuted for the same cause for which it was brought, and is the same action. In cases where no action is brought by the injured party himself, the statute allows the action to be brought by the representative. This could not have been done at the common law, and it is, therefore, in

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