Fithian v. St. Louis & S.F. Ry. Co.

• Decision Date: 22 June 1911
• Citation: 188 F. 842
• Parties: FITHIAN et al. v. ST. LOUIS & S.F. RY. CO.
• Court: U.S. District Court — Western District of Arkansas

188 F. 842

FITHIAN et al. v. ST. LOUIS & S.F. RY. CO.

United States Circuit Court, W.D. Arkansas.

June 22, 1911

Hill Brizzolara & Fitzhugh, for plaintiffs.

B. R Davidson, for defendant.

TRIEBER District Judge (after stating the facts as above).

As this is a cause of action created by an act of Congress it must be determined by that act. Schreiber v. Sharpless, 110 U.S. 76, 80, 3 Sup.Ct. 423, 28 L.Ed. 65; Fulgham v Midland Valley Ry. (C.C.) 167 F. 660; Walsh v. N.Y N.H. & H.R.R. Co. (C.C.) 173 F. 494; Cound v. A., T. & S.F. Ry. Co. (C.C.) 173 F. 527; Smith v. Detroit, etc., Ry. Co. (C.C.) 175 F. 506; Hagen v. Kean, 3 Dill. 124, Fed. Cas. No. 5,899. This leaves for determination whether under this act the next of kin dependent upon the deceased can maintain an action if there is no personal representative, or can the action be maintained only by the personal representative?

The acts for the protection of employes, enacted by the several states of the Union, generally modeled after 'Lord Campbell's Act,' vary considerably as to the person who is to prosecute the action as plaintiff. Some of the acts require it to be brought by the personal representative for the benefit of those named in the act; others authorize it to be brought directly by the party for whose benefit the remedy is given although there is a personal representative, while others prescribe that the action be prosecuted by the personal representative if there is one, and if not by the beneficiaries. In some of the states the action must be prosecuted in the name of the state for the use of the beneficiaries named in the act, and in Maine and Massachusetts the remedy was at one time by indictment. For a full review of the different acts in the United States, see Tiffany on Death by Wrongful Act, c. 6, Secs. 90-108.

As the right of action for injuries resulting in death is entirely based upon statute, no such right existing at common law, the law is well settled that such an action can only be brought in the name of the person or persons to whom the right is given by the statute under which it is sought to prosecute it, upon the well-settled principle that when a statute gives the cause of action and designates the persons who may sue, they alone can sue. Usher v. West Jersey R.R. Co., 126 Pa. 206, 17 A. 597, 4 L.R.A. 261, 12 Am.St.Rep. 863; Stewart v. Louisville, etc., Ry. Co., 83 Ala. 493, 4 So. 373; Dacey v. Old Colony R.R. Co., 153 Mass. 112, 26 N.E. 437; Nash v. Tousley, 28 Minn. 5, 8 N.W. 875; Columbus, etc., R.R. Co. v. Bradford, 86 Ala. 574, 6 So. 90; Railway Co. v. Hunter, 70 Miss. 471, 12 So. 482; Little Rock & Ft. Smith Ry. Co. v. Townsend, 41 Ark. 382; Davis v. Railway Co., 53 Ark. 117, 13 S.W. 801, 7 L.R.A. 283; Whiton v. Chicago, etc., R.R. Co., 21 Wis. 310; Oates v. Union Pac. R.R. Co., 104 Mo. 514, 16 S.W. 487, 24 Am.St.Rep. 348; Wooden v. Western N.Y., etc., Ry. Co., 126 N.Y. 10, 26 N.E. 1050, 13 L.R.A. 458, 22 Am.St.Rep. 803; Hagen v. Kean, 3 Dill, 124, Fed. Cas. 5,899.

But it is earnestly contended by the learned counsel for plaintiffs that upon a proper construction of the act of Congress an action may be maintained by the next of kin dependent upon the deceased if there is no personal representative, and it is claimed that the words 'and, if none, then the next of kin dependent upon such employe' refer to the personal representative and not the beneficiaries. Section 1 of the act of Congress, which provides for this remedy, so far as it is applicable to this issue, is as follows:

'That every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part,' etc.

The language of the act is too plain to bear such a construction. What was intended by Congress by the words 'and, if none' refers to the beneficiaries mentioned in the preceding part of that section. This is clearly shown by the context of the entire section. The beneficiaries first mentioned are 'the surviving widow or husband and children of such employe. ' That is followed by a semicolon. Then the act proceeds, 'and, if none, then of such employe's parents,' followed again by a semicolon; and then follows, 'and, if none, then of the next of kin dependent upon such employe. ' The words 'if none' clearly apply solely to the persons for whose benefit the personal representative is authorized to prosecute the action, and who, in case of a recovery, are to be the beneficiaries.

The importance of having the relationship of the parties for whose benefit the action is brought set out is apparent from the fact that this act does not provide for the survival of the cause of action which the deceased had at the time of his death, but is a new...