Garrett v. Louisville & N. R. Co.

• Decision Date: 17 July 1912
• Docket Number: 2,208.
• Citation: 197 F. 715
• Parties: GARRETT v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

197 F. 715

GARRETT v. LOUISVILLE & N.R. CO.

No. 2,208.

United States Court of Appeals, Sixth Circuit.

July 17, 1912

This action was originally brought in the circuit court of Houston county, Tenn., and on petition of the railroad company was removed to the court below. The declaration contains three counts, and in each it is alleged that 'plaintiff is a citizen of the state of Kentucky, and is the administrator of T. W. Lewis, Jr., by appointment of the county court of Stewart county, Tenn.'; that defendant is a corporation under the laws of the state of Kentucky; that at the time in question, September 27, 1909, defendant was engaged in commerce between the states of Kentucky and Tennessee and other states; and that deceased was on that date in the employ of the company as a brakeman on one of its freight trains, and through negligent telegraphic orders the train was brought into collision with another freight train of the company which resulted in the death of plaintiff's intestate. The alleged negligent acts are variously stated and ascribed to the company, its engineer and conductor in charge of the train, and two of its telegraph operators in sending and reading the dispatch; that in an effort to save his life by jumping from the engine on which he was at the time riding, when it was seen that collision was imminent deceased without fault on his part was caught under the engine and held for six hours or more, suffering intense agony and pain from both the weight of the engine and hot water from the boiler, in consequence of which he died shortly after the engine was removed from his body. In each of the counts, it is alleged that at the time of his death deceased was 24 years of age, was strong and vigorous and of fine business qualifications and earning capacity; in the first and second counts that he left surviving him T. W Lewis, his father, and Mrs. T. W. Lewis, his mother; in the third count that he left surviving him not only his father and mother, as stated, but also brothers and sisters, whose names are not stated. In the first and second counts it is alleged that plaintiff sues for the benefit of decedent's parents, and in the third count simply as administrator of deceased, but in each count for $50,000 damages.

In the petition for removal, it is alleged, among other things, that the railroad company was incorporated by act of the General Assembly of Kentucky, approved March 5, 1850 (Acts 1849-50 c. 382), was never incorporated under the laws of the state of Tennessee, and is an existing corporation under the laws of Kentucky; that for the sole purpose of preventing removal of the action plaintiff, although a citizen of Kentucky, sued in his official capacity as administrator; that under chapter 501 of the acts of that state of 1903 he was for the purposes of the suit a citizen of Tennessee; that this is a controversy between citizens of different states; and that the suit is brought to recover damages for alleged wrongful killing of deceased under the Second Employer's Liability Act of Congress of April 22, 1908, c. 149, 35 Stat. 65 (U.S Comp. St. Supp. 1911, p. 1322).

The order for removal states as its basis simply that the petition with proper bond was presented before the time the railroad company was required by the laws of Tennessee or rules of court to answer or plead to the declaration. Subsequently the railroad company filed in the court below pleas of not guilty and contributory negligence, to each of which replication was made. Both parties presented evidence, and the cause was tried upon the theory that the action was based on the Second Employer's Liability Act of Congress. At the close of all the evidence, a motion to direct a verdict for defendant was granted; and the case is prosecuted here upon assignments of error.

So far as the record discloses, no motion to remand the cause to the state court was made. The act of Tennessee, upon which the railroad company founds the averment, as stated, that plaintiff below is a citizen of Tennessee, provides that whenever a nonresident of Tennessee qualifies in that state as an administrator of a person dying or leaving assets or property in the state, 'for the purpose of suing and being sued he shall be treated as a citizen of this state. ' Acts 1903, p. 1344.

H. N. Leech, for plaintiff in error.

John B. Keeble, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

We take it that no question of jurisdiction of the trial court can arise; for assuming, without deciding, that removal of the cause from the state court to the court below was not warranted upon the ground of alleged diversity of citizenship (Cincinnati, H. & D.R. Co. v. Thiebaud, 114 F. 918, 924, 52 C.C.A. 538 (C.C.A. 6th Cir.); Amory v. Amory, 95 U.S. 186, 187, 24 L.Ed. 428; Continental Ins. Co. v. Rhoads, 119 U.S. 239, 240, 7 Sup.Ct. 193, 30 L.Ed. 380; McDuffie v. Montgomery (C.C.) 128 F. 105, 107; Acts of Tennessee 1903, c. 501, p. 1344)-- a matter that the parties could not waive (Chi., B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 419, 31 Sup.Ct. 460, 55 L.Ed. 521) [197 F. 718] -- still the action might originally have been brought and maintained by plaintiff in a federal court (Act of Congress August 13, 1888, c. 866, Sec. 1, 25 Stat.L. 433 (U.S. Comp. St. 1901, p. 508); Act of Congress April 22, 1908, c. 149, Sec. 1, 35 Stat.L. 65; Second Employer's Liability Cases, 223 U.S. 55, 56, 57, 32 Sup.Ct. 169, 56 L.Ed. 327). True, it is not distinctly alleged in the declaration that the action is based upon the Second Employer's Liability Act; but we think this effect must be given to the averments of the declaration that deceased met his death while in the employ of the company and while it was engaged in interstate commerce. Such averments rendered the federal act alone applicable, and, further, the case was tried and disposed of below upon that theory. Second Employer's Liability Cases, supra; Smith v. Detroit, T.S.L. Ry. Co. (C.C.) 175 F. 507; Cound v. Atchison, S.F. Ry. Co. (C.C.) 173 F. 531; Erie R. Co. v. White, 187 F. 556, 558, 109 C.C.A. 322 (C.C.A. 6th Cir.). True, also, through the removal, the suit was maintained in a federal district of which the defendant was not a resident (Smith v. Detroit, T.S.L.R. Co., 175 F. 508, and cases there cited); but since the parties could and did accept the jurisdiction of the court below (In re Moore, 209 U.S. 496, 505, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164; Kreigh v. Westinghouse & Co., 214 U.S. 252, 253, 29 Sup.Ct. 619, 53 L.Ed. 984; Erie R. Co. v. Kennedy, 191 F. 332, 334, 112 C.C.A. 76 (C.C.A. 6th Cir.); Hubbard v. Chicago, M. & St. P. Ry. Co. (C.C.) 176 F. 994, 997; Detroit Trust Co. v. Pontiac Savings Bank, 196 F. 29, 32 (C.C.A. 6th Cir.)), the removal cannot be and is not questioned.

We thus reach the merits of the case. The motion to direct a verdict hinged upon a construction of the act of Congress mentioned. The issue was, as the learned trial judge stated, whether the act provides for the survival of the action that accrued to the decedent before his death, or for an action to recover damages for the death. The trial court took the latter view. As we interpret the assignments of error, the issue as stated and the ruling of the court present the principal question that is open here; that is, whether this is a survival act. The errors complained of in substance concern (1) the ruling out of evidence showing the pain and suffering of deceased while held under the engine; (2) the receiving of evidence 'as to the expectancy of the deceased's father and mother'; (3) the exclusion of evidence of the 'pecuniary value of the life,' etc.; (4) the ruling 'that the declaration is insufficient to permit evidence looking to the earning capacity of the deceased.' We may say in passing that the reason for this latter ruling was that, while the declaration avers in two counts that the plaintiff sues for the benefit of the parents, it fails to allege special damages. The court tendered leave to amend the declaration so as to state the damages claimed to have been sustained by the father and mother through the death of their son; but learned counsel declined to amend, stating that he would stand on his 'conception of this case.' The court then ruled out the evidence indicated by the assignments, which had been previously admitted subject to exception, and granted the motion to direct.

Did the action that accrued to the decedent survive to his parents? There can be no doubt of the torture that deceased endured while under the engine; nor can there be any doubt that if he had survived he would have been entitled (if he recovered at all) to substantial damages for that reason and for other reasons equally obvious. That action either survived to his parents or it did not. The act provides that the 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 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 from the negligence of any of the officers, agents,' etc.

It will be observed that the liability imposed is in damages (1) to the employe; (2) to the personal representative, for the benefit of (a) the surviving widow * * * and children, and if none, then (b) such employe's parents, and, if none, then (c) the next of kin dependent upon such employe. The damages mentioned are allowed in favor of...