Francis v. Southern Pac. Co.

• Decision Date: 20 August 1947
• Docket Number: No. 3424.,3424.
• Citation: 162 F.2d 813
• Parties: FRANCIS et al. v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

162 F.2d 813 (1947)

FRANCIS et al. v. SOUTHERN PAC. CO.

No. 3424.

Circuit Court of Appeals, Tenth Circuit.

July 9, 1947.

Rehearing Denied August 20, 1947.

COPYRIGHT MATERIAL OMITTED

Parnell Black, of Salt Lake City, Utah (B. E. Roberts, Calvin W. Rawlings, H. E. Wallace and Wayne L. Black, all of Salt Lake City, Utah, on the brief), for appellants.

Paul H. Ray, of Salt Lake City, Utah (S. J. Quinney, Grant C. Aadnesen and Ray, Quinney & Nebeker, all of Salt Lake City, Utah, on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Jack R. Francis and Delphia Packer Francis were husband and wife; and they were the parents of three children, all minors. Southern Pacific Company is a railway company. On the day in question, the westbound passenger train No. 21 of the company was operated in two sections. Francis and his wife were passengers on the first section. They boarded the train at Ogden, Utah, were en route to Carlin, Nevada, and occupied a berth in the rear car of the train. Francis was an employee of the company; and he and his wife were each using a pass issued by the company which contained a provision that in its use the user assumed all risk of injury to person or property whether by negligence or otherwise, and absolved the company from any liability therefor. The two sections of the train left Ogden approximately twelve minutes apart. A freight train ahead of the first section of the passenger train encountered difficulty at a point about 18 miles west of Ogden. On that account, the first section of the passenger train was compelled to stop, and it then moved forward slowly and cautiously. The second section crashed into the first section, and Francis and his wife were killed. The minor children of the deceased parents, acting through their general guardians, brought two actions against the company to recover damages, one based upon the death of their father and the other upon the death of their mother. The complaint in each case was in two counts. The first count charged failure to use ordinary care in the operation of the second section of the passenger train, and the second count charged wanton misconduct in the operation of the train. The company denied negligence and misconduct in the operation of the train, and pleaded in defense the provision of the pass absolving the company from liability. The two causes were consolidated for trial. The court submitted both cases to the jury on the issue whether the engineer of the second section was guilty of wanton misconduct in the operation of the train as charged in the second count of the complaint. Verdicts were returned for the company, judgments were entered accordingly, separate appeals were perfected, and the case involving the death of the father of the minor children is presently before us for determination.

Error is predicated upon the refusal of the court to submit to the jury the issue of ordinary negligence in the operation of the train as charged in the first count in the complaint. The argument is that the action is founded upon the law of Utah; that the action is independent of any right of action the father of the minors may have had; and that the conditions of the pass upon which their father was riding on the train do not abrogate or cut off their right of action. Article XVI, section 5, of the Constitution of Utah, provides in substance that the right of action to recover damages for injuries resulting in death shall never be abrogated; and with an exception which does not have any bearing here, section 104 — 3 — 11, Utah, Code Ann.1943, provides in presently material part that when the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death, and that such damages may be given as under all the circumstances of the case shall be just. The statute does not provide for the survival of a right of action. Neither does it transfer a right of action from the decedent to his heirs. It creates a new right of action in the heirs which did not exist at common law. It is an action which arises on the death of the decedent. And it is separate and distinct from any action which the decedent might have maintained for personal injuries had he survived the accident. Mason v. Union Pacific Railway Co., 7 Utah 77, 24 P. 796; Halling v. Industrial Commission, 71 Utah, 112, 263 P. 78; Morrison v. Perry, 104 Utah, 151, 140 P.2d 772. But, even though it is a separate and distinct action which arises on the death of the decedent, the foundation of the right of action is the original wrongful injury to the decedent. And it is essential to the maintenance of the action that the wrongful act or default be of such character that the decedent could have maintained an action to recover damages for his injury if death had not ensued. While it is not a derivative action in the ordinary meaning of the term, recovery cannot be had unless the decedent could have recovered damages for his wrongful injury if he had survived. Northern Pacific Railway Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513; Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas.1914C, 176; Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906; Flynn v. New York, New Haven & Hartford Railroad Co., 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837, 72 A.L.R. 1311.

At the time of the fatal accident, the father of the plaintiffs was using the pass issued to him in transportation in interstate commerce. The pass had been issued under the provisions of the Hepburn Act, Interstate Commerce Act as amended, 49 U.S.C.A. § 1. The force and effect of a condition attached to such a pass absolving the company from liability for injuries to person or property is not governed by the law of the state in which personal injury or death occurred. It is governed by federal law. Northern Pacific Railway Co. v. Adams, supra; Kansas City Southern Railway Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348. And where the holder of a pass containing a provision of that kind uses it for transportation in interstate commerce as a passenger on the train of the company issuing the pass and is killed while en route as the result of an accident, the company is not liable to the surviving heirs of the deceased under a state statute such as section 104 — 3 — 11, supra, for damages proximately caused by ordinary negligence in the operation of the train. Northern Pacific Railway Co. v. Adams, supra. Therefore the court was correct in declining to submit to the jury the issue of ordinary negligence in the operation of the second section of the train, as charged in the first count of the complaint.

It is urged that the court erroneously admitted in evidence certain testimony given by a pathologist. One question of fact contested with vigor at the trial was whether the engineer in charge of the engine on the second section of the train, in wanton disregard of the consequences reasonably to be expected, passed two overlapping stop signals as he approached the point of the crash, or whether he died suddenly of coronary occlusion or advanced coronary arteriosclerosis before passing the second signal. In support of its contention that the engineer died of one or the other of such natural causes before passing the last stop signal, the company called as a witness a pathologist whose qualifications as an expert in that field are not challenged. The witness had performed about three thousand autopsies; and he was familiar with the usual autopsy reports, their terms and meanings. He examined the report of an autopsy made upon the body of the engineer and testified at length, much of his testimony being based upon the report. And...