Fulgham v. Midland Valley R. Co.

• Decision Date: 19 February 1909
• Parties: FULGHAM v. MIDLAND VALLEY R. CO.
• Court: U.S. District Court — Western District of Arkansas

167 F. 660

FULGHAM v. MIDLAND VALLEY R. CO.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

February 19, 1909

Oscar L. Miles, for plaintiff.

Ira D Oglesby, for defendant.

ROGERS District Judge.

On April 22, 1908, Congress passed what is known as the 'Railroad Company Employer's Liability Act,' the first section of which is as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories or between the District of Columbia or any of the states or territories and any foreign nation or nations, 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 employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, road-bed, works, boats, wharves, or other equipment. ' Act April 22, 1908, c. 149, 35 Stat. 65.

The complaint in this case is in two counts. The first is for the benefit of the estate of the deceased, and involves the right of the administrator to recover for pain and suffering, mental and physical (including wanton and negligent treatment of the deceased after his injury), up to the period of his death. The second count is for the benefit of the surviving widow and children of the deceased, and involves damages for his wrongful death, etc.

It is apparent that these two separate and distinct causes of action are modeled upon the legislation of the state of Arkansas (Kirby's Digest, Secs. 6285-6290), which were interpreted in the case of Davis v. Railway, 53 Ark. 117, 13 S.W. 801, 7 L.R.A. 283. In that case one cause of action was given under section 6285, and the other under sections 6289 and 6290. The former was for the benefit of the estate; the latter for the benefit of the widow and next of kin. Section 6285 expressly provides for the survival of the right of action for the injury in case of death as the result therefrom, and vests the right of action in the personal representatives of the deceased, for the benefit of his estate. The other two sections give a right of action for a death caused by negligence, and also vests the right of action in the personal representatives of the deceased for the benefit of the widow and children. The court in Davis v. Railway, supra, held that the statutes creating these two causes of action were not in conflict, were in their natures separate and distinct, and both vested in the personal representative, and might proceed pari passu in one suit.

What of the federal statute quoted above? First, can plaintiff avail himself of the Arkansas statutes in this character of case for any purpose? It is admitted the suit was brought under the federal statute quoted. It could not have been brought in this court had it not been, for the citizenship of the parties is the same. The authority for enacting the statute must be found in the interstate commerce clause of the federal Constitution (Const. art. 1, Sec. 8, cl. 3). The very terms of the act are conclusive of that, and it is not controverted. A reference to the whole act clearly shows Congress undertook to regulate the relations of employers and employes engaged in interstate commerce by railroad. This act is intentionally limited to interstate commerce. Another other act on the same subject had been declared unconstitutional because it covered the regulation of intrastate commerce. The Employer's Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297. This court held in Smeltzer v. St. Louis & San Francisco Railroad Company (C.C.) 158 F. 649-651, upon authorities there cited, that:

'The power of Congress under the interstate commerce clause of the Constitution is plenary, and without limitation other than those prescribed in the Constitution itself.'

In Atlantic & Tel. Company v. Philadelphia, 190 U.S. 162, 23 Sup.Ct. 817, 47 L.Ed. 995, the court, speaking through Mr. Justice Brewer, said: 'First. As said by Mr. Justice Bradley, speaking for the court, in Robbins v. Shelby Taxing District, 120 U.S. 489, 492, 7 Sup.Ct. 592, 593, 30 L.Ed. 694: 'The Constitution of the United States, having given to Congress the power to regulate commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system or plan of regulation.'

'In addition to the many cases referred to by him, the following subsequent decisions may also be cited: Fargo v. Michigan, 121 U.S. 230, 246, 7 Sup.Ct. 857, 30 L.Ed. 888; Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326, 336, 346, 7 Sup.Ct. 1118, 30 L.Ed. 1200; Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 357, 7 Sup.Ct. 1126, 30 L.Ed. 1187; Bowman v. Chicago, etc., R. Co., 125 U.S. 465, 497, 8 Sup.Ct. 689, 31 L.Ed. 700; Leloup v. Port of Mobile, 127 U.S. 640, 648, 8 Sup.Ct. 1380, 32 L.Ed. 311; Asher v. Texas, 128 U.S. 129, 131, 9 Sup.Ct. 1, 32 L.Ed. 368; Stoutenburgh v. Hennick, 129 U.S. 141, 148, 9 Sup.Ct. 256, 32 L.Ed. 637; Leisy v. Hardin. 135 U.S. 100, 110, 10 Sup.Ct. 681, 34 L.Ed. 128; Lyng v. Michigan, 135 U.S. 161, 10 Sup.Ct. 725, 34 L.Ed. 150; McCall v. California, 136 U.S. 104, 109, 10 Sup.Ct. 881, 34 L.Ed. 392; In re Rahrer, 140 U.S. 545, 555, 11 Sup.Ct. 865, 35 L.Ed. 572; Crutcher v. Kentucky, 141 U.S. 47, 58, 11 Sup.Ct. 851, 35 L.Ed. 649; Brennan v. Titusville, 153 U.S. 289, 304, 14 Sup.Ct. 829, 38 L.Ed. 719; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 471, 14 Sup.Ct. 1125, 38 L.Ed. 1047; United States v. E. C. Knight Co., 156 U.S. 1, 21, 15 Sup.Ct. 249, 39 L.Ed. 325; Schollenberger v. Pennsylvania, 171 U.S. 1, 18 Sup.Ct. 757, 43 L.Ed. 49; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 Sup.Ct. 96, 44 L.Ed. 136; Stockard v. Morgan, 185 U.S. 27, 22 Sup.Ct. 576, 46 L.Ed. 785.'

It is clear that the act of April 22, 1908, supra, superseded and took the place of all state statutes regulating relations of employers and employes engaged in interstate commerce by railroads. It covered not only injuries sustained by employes engaged in that commerce resulting from the negligence of the master and his servants, and from defects in the designated instrumentalities in use in that commerce, but also dealt with contributory and comparative negligence and assumed risk, making in certain cases, at least, the master an insurer of the safety of the servant while in his employment in that commerce. It covers and overlaps the whole state legislation, and is therefore exclusive. All state legislation on that subject must give way before that act. Miss. Railroad Commission v. Ills. Cent. R.R Company, 203 U.S. 335, 27 Sup.Ct. 90, 51 L.Ed. 209; Sherlock et al. v. Alling, Administrator, 93 U.S. 104, 23 L.Ed. 819. These last cases serve to show that, until Congress has acted with reference to the regulation of interstate commerce, state statu...