Felton v. Spiro

Decision Date02 February 1897
Docket Number452.
Citation78 F. 576
PartiesFELTON v. SPIRO.
CourtU.S. Court of Appeals — Sixth Circuit

Chas R. Head, and Edw. Colston, for plaintiff in error.

H. H Ingersoll, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SAGE, District Judge.

TAFT Circuit Judge.

This action was brought by Fannie Spiro, as the widow of Herman Spiro, deceased, to recover damages for the death of her husband, caused, as she alleged, by the negligence of the servants of the defendant, Samuel Felton, receiver of the court below, engaged, under the order of the court, in the operation of the railway of the Cincinnati, New Orleans and Texas Pacific Railway. The deceased, Herman Spiro, was a passenger on a local freight train of the defendant. As he was about to alight from the train at a small station in Tennessee, he was jerked or thrown violently from the back platform of the caboose to the ground, and so injured that he died very soon after. The negligence charged consisted in the sudden movement of the engine at a time when passengers were invited to alight. The contention of the defendant was, and he called a great many witnesses to sustain it, that the train had been standing still for five or ten minutes, affording the deceased ample time to leave the train in safety; that he negligently remained on board until the end of this time, and then, when the train began to back up, and while it was in motion, he rushed to the platform, and, in attempting to leave the moving car, he fell, and was injured. It may be remarked that the great weight of evidence supported the view that the accident was solely the result of the negligence of the deceased-- first, in not leaving the car when invited to do so; and, second, in attempting to leave it when the freight train was in motion. Upon a first trial the jury disagreed. Upon a second trial, which is the one now under review, there was a verdict for the plaintiff of $6,000. There are several assignments of error based on the rulings of the court at the trial.

First the court permitted the plaintiff, over the objection of the defendant, to prove the number of children of deceased left. In Pennsylvania Co. v. Roy, 102 U.S. 451, 460, where a plaintiff was suing a railroad company for a personal injury to himself, the supreme court held that evidence of the size of the family dependent on the plaintiff was not relevant to the issue, and was calculated to arouse undue sympathy in the minds of the jury, and to enhance the damages beyond a just sum. But, in Railroad Co. v. Mackey, 157 U.S. 75, 15 Sup.Ct. 491, where the action was by the administrator of one to recover damages for the death of his intestate caused by defendant's negligence, and the statute giving the right of action provided that the damages recovered should inure to the benefit of the family of the deceased, the same court held that it was entirely proper for the jury, in estimating the loss suffered by those in whose behalf the suit was brought, to take into consideration the number and ages of the children. If, therefore, under the statute of Tennessee, the action by the widow is for the benefit of herself and her children, the evidence objected to was rightly admitted.

By the Code of 1858 of Tennessee (sections 2291-2293) it was provided as follows:

'2291. The right of action which a person who dies from injuries received from another or whose death is caused by the wrongful act or omission of 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 personal representative, for the benefit of his widow and next of kin, free from the claims of his creditors.
'2292. The action may be instituted by the personal representative of the deceased; but if he decline it, the widow and children of the deceased may, without the consent of the representative use his name in bringing and prosecuting the suit on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he sign his name to the prosecution bond.
'2293. If the deceased had commenced an action before his death, it shall proceed without a revivor. The damages shall go to the widow and next of kin free from the claims of the creditors of the deceased, to be distributed as personal property.'

The distribution of personal property, under the Tennessee law, when there are a widow and children, is 'to the widow and children equally, the widow taking a child's part. ' Code 1858, Secs. 2429-2431.

There is no doubt or dispute that, under unamended sections 2291 and 2292, the suit brought would be for the benefit of the widow and children, but the suit would have to be brought in the name of the personal representative, with or without his consent. In 1871, the first two sections above quoted were amended by an act which is still in force, and which provides:

'That section 2291 of the Code of Tennessee be so amended as to provide that the right of action which a person, who dies from injuries received 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 his creditors.
'Sec. 2. Be it further enacted, that section 2292 be so amended as to allow the widow, or if there be no widow, the children, to prosecute the suit, and that this remedy is provided in addition to that now allowed by law in the class of cases provided for by said section and section 2291 of the Code, which this act is intended to amend.'

The contention of the counsel for the defendant receiver is that the act of 1871 made the suit in the name of the widow for her own benefit alone, and that the children of the deceased husband would have no legal interest in her recovery. The argument rests on the substitution in the amendment of the disjunctive 'or' for the conjunctive 'and,' as it occurs in unamended section 2291, in the phrase 'for the benefit of the widow and next of kin. ' If this construction is correct, then we have the anomalous result that, where a suit is begun before the death of the injured person, the avails of the suit recovered after his death, pass, by virtue of section 2293, which was not amended by the act of 1871, to the widow and children, but that when the suit is brought after the death, then the recovery is for the benefit of the widow, and not of the children. Certainly this result is to be avoided if possible without straining the language used. It is perfectly manifest that the whole object of the amendment was to remove the necessity for bringing the action in the name of the representative, and to give to the widow, or, in case there was no widow, the children, the right to bring the action without using the name of the representative. It was intended to affect the procedure and not the beneficiaries. This is made manifest by the fact that section 2293 was not amended. As the suit was by that section to proceed in the dead plaintiff's name without revivor, there was no need of using the name of the representative of the deceased, and hence no need of an amendment permitting the use of the widow's name instead of that of the representative. The clause of the amending act in which the disjunctive 'or' is substituted for 'and' of the old act is an awkward one. The intended meaning could only be certainly conveyed by separating the various cases intended to be covered and stating each by itself. The 'or' was probably used in view of the possibility that there might be no widow, in which case the avails of the suit would of course go only to the next of kin; but the contingency in which there might be a widow and children was lost sight of. All the circumstances taken together lead to the conclusion that the change of 'and' to 'or' was not to effect a change in meaning as to the beneficiaries, but arose from mere carelessness in the use of language. It is not uncommon, in order to carry out the obvious intent of the legislature, for courts to construe 'or' as meaning 'and.' Massie v. Jordan, 1 Lea, 647; Union Ins. Co. v. U.S., 6 Wall. 759, 764.

Though the exact point here presented has never been in judgment before the supreme court of Tennessee, that court has frequently expressed the view that, where the widow sues in such a cause, she sues as trustee for herself and her children. Greenlee v. Railway Co., 5 Lea, 419; Webb v. Railway Co., 88 Tenn. 128, 12 S.W. 428; Loague v. Railroad, 91 Tenn. 461, 19 S.W. 430; Railroad Co. v. Acuff, 92 Tenn. 29, 20 S.W. 348; Holder v. Railroad Co., 92 Tenn. 146, 20 S.W. 537. In Railroad Co. v. Bean, 94 Tenn. 394, 29 S.W. 370, cited by counsel for the receiver, it was held that, where the right of action had once vested in the widow, the cause of action did not pass on her death to her representative, but was extinguished. But in that case there were no children, so that the court was not required to decide, and did not in fact decide, that the widow is the only beneficiary where there are children. We find no error in the action of the court in allowing evidence as to the number and ages of the real parties in interest in the suit.

The next assignment is based on the admission by the court of the statement of a photographer as to the condition of the track at the point near where the accident occurred, some 23 months after the accident. Without objection, a photograph of the locus in quo, taken 23 months after the...

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