Gregory v. Southern Pac. Co.

• Decision Date: 11 November 1907
• Docket Number: 3,111.
• Citation: 157 F. 113
• Parties: GREGORY et al. v. SOUTHERN PAC. CO.
• Court: U.S. District Court — District of Oregon

157 F. 113

GREGORY et al. v. SOUTHERN PAC. CO.

No. 3,111.

United States Circuit Court, D. Oregon.

November 11, 1907

C. B Watson and Bennett & Sinnott, for plaintiffs.

Wm. D Fenton and R. A. Leiter, for defendant.

WOLVERTON District Judge.

F. H Gregory was injured while in the employ of the defendant company, through its alleged negligence, from the effect of which he subsequently died. The injury was sustained in the state of California on September 24, 1905, and Gregory died the following day. This action was instituted by his widow and children, who are his heirs, on December 24, 1906, more than one year subsequent to the time when the cause of action arose.

The right to maintain the action depends upon the force and effect of the statute of California giving the right of action to the heirs for the wrongful death of a decedent, and its limitation as to the time for instituting the same. To understand the scope and purpose of the statute, it is essential to trace a little its history. In 1862 an act was adopted 'requiring compensation for causing death by wrongful act, neglect, or default. ' St. Cal. 1862, p 447, c. 330. This statute provided:

'Section 1. Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default, is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.'

Section 2 gave a right of action for death caused by falling through any opening or defective place in any sidewalk, street, alley, or wharf, where death ensued.

'Section 3. Every such action shall be brought by and in the names (of) the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action, the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the wife and next of kin of such deceased person; Provided, that every such action shall be commenced within two years after the death of such person.'

In 1868 the Legislature adopted an act for the 'Revision and compilation of the laws of the state. ' St. 1867-68, p. 435, c. 365. A commission was appointed in pursuance of the act, but before it had completed its work another act was adopted, in 1870, 'Establishing a commission for the revision of the laws' (St. 1869-70, p. 774, c. 516), which commission was directed, authorized, and empowered to--

'revise all the statutes of this state * * * and prepare substitutes therefor when necessary; to recommend all such enactments as shall, in the judgment of the commission, be necessary to supply the defects of and give completeness to the existing legislation of the state, and prepare and present the bills therefor.'

The commission made a report in 1871, resulting in the adoption, on March 11, 1872, by the Legislative Assembly, of a Code of Civil Procedure. This Code was divided into parts, titles, and chapters. Part 1 has relation to courts of justice; part 2, to civil actions, etc. Title 1 of part 2 has relation to the form of civil actions, title 2 to the time of commencing such actions, and chapter 3 of the latter title to 'the time of commencing actions other than for the recovery of real property. ' Under this chapter is regulated the time for commencing an action to recover damages for the death of one, caused by the wrongful act or neglect of another. Title 3 pertains to 'the parties to civil actions,' and under it is found the right of action given where death is caused by the wrongful act or neglect of another. The right in its present amended form is comprised by section 377, still contained under that title, and reads as follows:

'When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person is employed by another who is responsible for his conduct, then also against such other person. In every action under this and the two preceding sections, such damages may be given as under all the circumstances of the case may be just.'

See Deering's Annotated Code of Civil Procedure.

Previously the time for commencing the action was limited to two years, but by an act adopted in 1905, sections 339 and 340, being comprised by said chapter 3, tit. 2, of the Code of Civil Procedure, were so amended as to limit the time for bringing the action to one year. Under this limitation were conjoined other actions, such as for libel, slander, and the like, whereas the action for death through the wrongful act of another had formerly stood as a single cause in its own class. It may be said that the change was brought about by simply dropping this cause of action out of section 339, prescribing the limitation of two years, and inserting it, among other causes, in section 340, prescribing a limitation of but one year. The Code of Civil Procedure of 1872 was the culmination of the work of the commission previously constituted, and its adoption was as a whole. Its arrangement and classification of subjects has never been changed, though numerous amendments have been made to particular sections, so that at the present time the law stands, as it relates to the subject under consideration, as above indicated. Such being the law, it remains to determine its effect and application where an action for the wrongful death of another has been brought in another state from that in which the cause arose.

The action given by the California statute is in effect the same as that accorded by Lord Campbell's act. It is a new action-- that is, one that had not previously obtained under the common law-- and not a continuation or revival of an old action, or one that subsisted prior to the death. It is founded upon the injury causing death as it affects the heirs and personal representatives, and not as it affects the decedent individually. The title of Lord Campbell's act, it is said, is 'An act for compensating the families of persons killed. ' Blake v. Midland Ry. Co., 18 Q.B. 93, cited in Munro v. Dredging, etc., Co., 84 Cal. 515, 523, 24 P. 303, 18 Am.St.Rep. 248. And construing the present statute in comparison with that act, the Supreme Court of the state of California has said:

'In that (Lord Campbell's act) it was recited that no right of action existed at common law for such damages. It was then a new right of action. It could not be a continuation of the right which the injured man had for the injury, for the loss to his heirs did not accrue until he died. Under our statute the injured person might survive long enough to sue and recover damages, or to settle with the wrongdoer, and then, by his death, a new cause of action would accrue to his heirs. ' Burk et al. v. Arcata & M.R.R. Co., 125 Cal. 364, 57 P. 1065, 1066, 73 Am.St.Rep. 52.

This construction of the California statute has long been and is yet adhered to. See Hartigan v. Southern Pacific Co., 86 Cal. 142, 24 P. 851; Lange v. Schoettler, 115 Cal. 388, 47 P. 139; Webster v. Norwegian Min. Co., 137 Cal. 399, 70 P. 276, 92 Am.St.Rep. 181. Oregon has a similar statute, which has been construed with like effect. Perham v. Portland Electric Co., 33 Or. 451, 53 P. 14, 24, 40 L.R.A. 799, 72 Am.St.Rep. 730. But the statute regulating the time in which the action shall be commenced fixes the limitation at two years.

The action upon which plaintiffs' right of recovery is predicated is unquestionably transitory. That it is for a tort, or is of statutory origin, does not affect its character in that respect. It is personal, and can be invoked wherever the defendant may be found or subjected to personal process, or voluntary appearance can be had. The action, says Mr. Justice Miller, in Dennick v. Railroad Co., 103 U.S. 11, 18, 26 L.Ed. 439--

'is in the nature of trespass to the person, always held to be transitory, and the venue immaterial. * * * We do not see how the fact that it was a statutory right can vary the principle.'

The case was one where an action was instituted in the state of New York upon a cause for the wrongful death of another, which arose in the state of New Jersey, under the statute of that state giving the action. The general rule that the right of action is governed by the lex loci, and the remedy by the lex fori, is altogether applicable, as in actions ex contractu. Says the Court of Appeals for the Fifth Circuit, employing the language of the lower court:

'Where torts are committed in foreign countries, or beyond the territorial jurisdiction of the sovereignty in which the action is brought, the lex fori governs, no matter whether the right of action depends upon the common law or a local statute, unless the statute which creates or confers the right limits the duration of such right to a prescribed time. ' Munos v. Southern Pac. Co., 51 F. 188, 190, 2 C.C.A. 163.

So the Supreme Court of the United States has adopted the language of the State Supreme Court of Minnesota, as follows:

'The statute of another state has, of

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