Florida Cent. & P.R. Co. v. Sullivan

• Decision Date: 03 March 1903
• Docket Number: 1,177.
• Citation: 120 F. 799
• Parties: FLORIDA CENT. & P.R. CO. v. SULLIVAN.
• Court: U.S. Court of Appeals — Fifth Circuit

120 F. 799

FLORIDA CENT. & P.R. CO. v. SULLIVAN.

No. 1,177.

United States Court of Appeals, Fifth Circuit.

March 3, 1903

J. C Cooper, for plaintiff in error.

A. W Cockrell, A. W. Cockrell, Jr., R. S. Cockrell, and Wm. W Quarles, for defendant in error.

This was an action by Helen A. Sullivan, as the administratrix of the estate of John T. Sullivan, deceased, against the Florida Central & Peninsular Railroad Company. The plaintiff was a citizen of Dallas county, Ala., of which state and county John T. Sullivan, deceased, was a citizen up to the time of his death. The action was brought in the United States Circuit Court for the Southern District of Florida. The plaintiff in her pleading showed that the deceased, on the 14th day of December, 1898, was a passenger on the railroad of the defendant, and while being carried as such passenger by reason of the negligence of the defendant and if its servants, he received injuries that resulted in his death. The proceedings presented the usual features, and resulted in a judgment in favor of the plaintiff. The case is brought here by the defendant on writ of error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge, after stating the case, .

In this case many errors are assigned, but it would be unprofitable to notice them in detail. They present substantially only three questions: (1) Can the administratrix, appointed in Alabama, maintain this suit in the state of Florida: (2) Does the matter offered by the defendant in support of its plea of contributory negligence tend to establish contributory negligence on the part of the deceased? (3) Is the case one in which the administrator can recover damages?

As to the first of these questions: The administratrix was appointed by proper proceedings in the proper court in the state of Alabama, and at the institution of her action she filed in the Circuit Court a properly authenticated copy of the letters of administration granted to her by the probate court in the matter of the deceased's estate. In the case of Sullivan v. Honacker, 6 Fla. 374, the Supreme Court of Florida, in discussing the law of that state, said:

'Our statute was intended to place foreign executors and administrators, mentioned in it, with respect to the institution and maintenance of suits in our courts, upon the same footing as executors or administrators who had obtained their letters testamentary or of administration in this state, whenever they should produce such letters duly obtained and properly authenticated.'

It is, however, insisted by the plaintiff in error that the statutes of Florida which fix the liability of the defendant for such injuries as are alleged to have been done the deceased, and which provide who may sue to recover the same, taken in connection with the provision for the distribution of the proceeds when recovered, compared and contrasted with the statutes in Alabama fixing similar rights, providing for the recovery of damages for such injuries, and for the distribution thereof, show such a dissimilarity and substantial conflict as to exclude this administratrix from prosecuting this action.

The law upon which the action is based is embraced in sections 2342 and 2343 of the Revised Statutes of Florida. It is unnecessary to quote the sections in full, or to give even the substance of section 2342, further than to say that it fixes the liability of persons committing such injuries. The other section provides that the action may be brought by the widow or surviving husband, as the case may be, and, where there is neither widow nor husband surviving, then by the minor child or children, and where there is no widow nor husband, nor minor child or children, then by any person or persons dependent on such person killed for support, and, where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed. In the case of Florida Central and Peninsular Railway Company v. Foxworth, reported in 41 Fla. 1-77, 25 So. 338, 79 Am.St.Rep. 149, in discussing this statute, the Supreme Court of Florida used this language (on page 70, 41 Fla., page 347, 25 South., 79 Am.St.Rep. 149):

'Our statute, unlike the English one, by giving a right of action to the administrator of the deceased, imposes the liability whether there be a family to compensate or not. Its effect was to abrogate the common-law rule, for which, if any reason ever existed, the world has long since outgrown it, denying damages, for human life, and to affix a penalty, by an award of pecuniary damages, for a careless or wrongful act resulting in another's death. In authorizing suits to enforce this liability, our act gives the right to those who are supposed to suffer most by the death of the deceased, but on no account does the action fail for want of a person to sue, as with Lord Campbell's act.'

As to the objection grounded on the different disposition of the fund by the laws of Florida and the laws of Alabama, it is enough to say that the law of Florida which gives the right, and gives direction to the proceeds of such a recovery, is the law of the case both as to the recovery and to the disposition of the proceeds. But it would be a reproach to the laws of Alabama to say that, when the money recovered in such an action as this came into the hands of the administratrix, the courts of that state could not compel its distribution as the law of Florida applicable thereto directs. Dennick v. Railroad Co., 103 U.S. 11-21, 26 L.Ed. 439; Stewart v. Baltimore & Ohio R.R. Co., 168 U.S. 445, 18 L.Ed. 105, 42 L.Ed. 537.

In reference to the second question: The bill of exception shows that:

'The plaintiff introduced evidence tending to show that on the date of the accident, the deceased, John T. Sullivan, was an enlisted soldier in the United States Army, a member of Battery D. Fifth Artillery, and was going from St. Augustine, Fla., through Jacksonville, to New Orleans, La., and that he got upon the train of the defendant at Jacksonville, on the morning of the accident, with 23 other soldiers, members of the company, all of whom were traveling upon one ticket to the party, and held by an officer in charge, and that, at the time the deceased and the rest of the party of soldiers got upon the train at Jacksonville, there were not seats enough in the regular passenger coach, to wit, the second car in the rear of the baggage car, for the entire party to obtain seats. That the train was composed of engine, baggage car, colored passenger coach, white passenger coach, Pullman car, and a special or private car; and that at the time of the accident the deceased, John T. Sullivan, and another soldier, known as Henry Lowenberg, were sitting in the car known as the 'colored car,' a car provided for colored persons; and that the train was running on a downgrade about 45 or 50 miles an hour, and struck some cattle on the track, and that the engine was forced into the car on which Sullivan was riding, and the people on the left of the car were crushed under the boiler, causing the death of Sullivan.

'The defendant introduced evidence that some years before, and at the time of the alleged accident, the

...