Gulf, M. & N. R. Co. v. Wood

• Decision Date: 27 February 1933
• Docket Number: 30469
• Citation: 164 Miss. 765,146 So. 298
• Parties: GULF, M. & N. R. Co. v. WOOD
• Court: Mississippi Supreme Court

146 So. 298

164 Miss. 765

GULF, M. & N. R. Co. v. WOOD

No. 30469

Supreme Court of Mississippi

February 27, 1933

Division B

1. MASTER AND SERVANT.

In action for engineer's death, whether brakes on freight train were defective, and whether, if brakes had been in good order, engineer could have backed train into siding and avoided collusion with passenger train, and thus avoided effect of engineer's contributory negligence, held for jury (Federal Employers' Liability Act, section 3 [45 U.S.C. A., section 53]).

2. MASTER AND SERVANT.

Railroad engineer's contributory negligence held no defense to action for death where interstate railroad violated safety appliance statute (Federal Employers' Liability Act section 3 [45 U.S.C. A., section 53]).

3 DEATH.

Five thousand dollars for death of railroad engineer held sufficient under evidence showing engineer deliberately took dangerous chance, though his contributory negligence could not be considered (Federal Employers' Liability Act section 3 [45 U.S.C. A., section 53]).

4 DEATH.

Federal Employers' Liability Act controls in every substantive particular which includes party in whom cause of action for death is vested (Federal Employers' Liability Act, section 3 [45 U.S.C. A., section 53]).

5. DEATH.

Administratrix lawfully appointed in another state could sue in state for employee's death under Federal Employers' Liability Act without taking out ancillary letters (Federal Employers' Liability Act, section 3 [45 U.S.C. A., section 53]; Code 1930, section 1723).

HON. THOS. H. JOHNSTON, Judge.

APPEAL from circuit court of Pontotoc county HON. THOS. H. JOHNSTON, Judge.

Action by Mrs. Sadie Wood, administratrix, against the Gulf, M. & N. R. Company. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals. Affirmed on direct and cross-appeal.

Affirmed on direct and on cross appeal.

E. B. Cooper, of Laurel, and B. N. Knox, of New Albany, for appellant.

It is fundamental that a foreign administrator has no power to sue in the courts of another state.

Kilpatrick v. Bush, 23 Miss. 99; Boyd v. Lambeth, 24 Miss. 433; Riley v. Moseley, 44 Miss. 37.

As appellee had not complied with section 1723 of the Code of 1930 the motion to dismiss should have been sustained.

Hope v. Hurt, 59 Miss. 174; Jackson v. Scanland, 65 Miss. 481, 4 So. 552.

The statute is plain and means that a foreign administrator has no standing or authority to sue, in the courts of this state or receive any money or property or debts for intestates until after filing in the office of the clerk of the chancery court of the county where there may be some person indebted to the deceased, or having some of his effects in possession, a certified copy of the record of the appointment and qualification of the administrator according to the law of the state where he qualified.

City Savings & Trust Company v. Briancheri, 111 Miss. 774, 72 So. 196; Sims v. Walden, 65 Miss. 211, 3 So. 457.

Section 1628 of Code of 1930 was enacted to cover cases of this character and clearly evinces the policy of the state to afford a remedy for a situation such as has been developed here. This statute was used by a resident of Tennessee and its use sustained.

Yazoo & M. V. Railroad Company v. Jefferies, 99 Miss. 534, 55 So. 354.

Any inference that defects caused the sticking is entirely removed for it clearly appears why the brakes stuck and the sticking was due to the normal action of the brakes and not to defects.

Patton v. Texas & P. R. R. Co., 179 U.S. 658, 45 L.Ed. 361.

The evidence in this case in kind and amount is not sufficient to warrant a verdict against appellant.

G. M. & N. R. R. v. Wells, 275 U.S. 455, 72 L.Ed. 370; Chicago M. & St. P. R. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041.

Notwithstanding the fact of the provisions of the Employers Liability Act, which negative contributory negligence on the part of the injured employee as a complete defense, there cannot be a recovery under that act where the negligence of the employee was the sole and proximate cause of the injury. As this action is controlled by the Federal Employers Liability Act, all rights and obligations depend upon it and applicable principles of the common-law as interpreted and applied by the Federal courts.

Horton case, 233 U.S. 492, 58 L.Ed. 1062; Sou. Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212.

Appellee cannot hold the company liable for a disaster that followed the disobedience of a rule intended to prevent it, when the disobedience was brought about and intended to be brought about by decedents.

Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139.

There can be no recovery under the Employers Liability Act when it appears that the decedent's injury and death were due solely to his own reckless and indifferent conduct.

Virginia Railway Company v. Linkhous, 144 C. C. A. 386, 230 F. 88, 148 C. C. A. 543, 235 F. 49; Great Northern v. Wiles, 240 U.S. 444, 60 L.Ed. 732; St. Louis Southwestern Railway Co. v. Simpson, 76 L.Ed. 689; Southern Railway Company v. Youngblood, Administratrix, 76 L.Ed. 703.

It is well settled that, unless such right is given to him by statute, an executor or administrator cannot sue in his representative capacity in any state or country other than that in which his letters testamentary or administration were granted.

24 Corpus Juris, section 2702, page 1129.

In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficacy to the appointment outside of the territorial jurisdiction of the state within which it was granted. All hold that, in the absence of such a statute, no suit can be maintained by an administrator in his official capacity, except within the limits of the state from which he drives his authority. If he desires to prosecute a suit in another state he must first obtain a grant of administration therein in accordance with its laws.

Noonan v. Bradley, 9 Wall, 394, 19 L.Ed. 757; Cornell Company v. Ward, 168 F. 51; Dodge v. Town of North Hudson, 177 F. 986; Louisville & Nashville R. R. Co. v. Brantley, 96 Ky. 297, 28 S.W. 477, 49, Am. St. Rep. 291.

Unless section 1723 does permit a foreign administrator to bring the suit, then the foreign administrator has no right to sue at all in the courts of this state.

Lee v. Missouri Pacific R. R. Co., 195 Mo. 400, 92 S.W. 614; Ferguson v. Harder, 252 N.Y.S. 783; Hall v. Southern R. H. Co., 149 N.C. 108, 62 S.E. 899; Hall v. Southern R. R. Co., 146 N.C. 345, 59 S.E. 879; Maysville R. R. Co. v. Marvin, 59 F. 91; Union R. R. Co. v. Shacklet, 119, Ill. 232, 10 N.E. 896; Brooks v. Southern Pacific R. R. Co., 148 F. 986.

If the cause of the sticking of the brakes was left unexplained by the proof in the record the court cannot infer that the cause of the sticking was due to a defect.

Patton v. T. & P. Railroad Company, 179 U.S. 658, 45 L.Ed. 361.

Admitting appellee is what she claims to be then she, the same as any other litigant after she has qualified as the personal representative of the decedent i. e., administratrix, the Federal act leaves her in the same class as any other litigant and she should comply with the statutes of Mississippi.

Geo. T. and Chas. S. Mitchell, of Tupelo, for appellee.

Section 1723, Code of 1930, has no application whatever to those causes of action on the part of a foreign executor or an administrator which do not seek to recover the assets of the estate of a testator or intestate. The statute applies solely to those causes of action on the part of a foreign executor or administrator which do seek to recover the assets of the estate of their testator or intestate.

Section 1723, Code of 1930.

If the cause of action accrued to the deceased in his lifetime or if the recovery that may be had becomes a part of the assets of the estate of the deceased, or if the cause of action survives to the administrator or the administratrix, as a chose in action, constituting a part of the assets of the estate of the deceased, under the common-law, a foreign administrator or administratrix was without authority to institute suit thereon in a foreign jurisdiction under any conditions.

A recovery under the Federal Employer's Liability Act is no part of the assets of the estate of the intestate but the personal representative is a mere nominal plaintiff and brings the suit solely for the benefit of the dependent widow and children and acts in the character of a trustee for their benefit being designated by the Federal statute itself as the only party who may institute and maintain the cause of action.

17 Corpus Juris, 1210; Richards v. Riverside Iron Works, 56 W.Va. 510, 49, S.E. 438; Kennedy v. Davis, 55 So. 104; Kelly v. U. P. Ry. Co., 125 S.W. 818; K. C. S. R. R. Co. v. Leslie, 238 U.S. 599; Wells, v. Davis, 261 S.W. 58; Knight v. M. E. M. & W. R. R. Co., 140 N.W. 839; Jeffersonville R. R. Co. v. Swayne, 26 Ind. 484.

At the common law, and especially under the principles of comity existing between the different states an action in tort which does not seek to recover the assets of the estate of a decedent is maintainable by a foreign administrator in a foreign jurisdiction.

13 Am. & Eng. Ency. of Law (2 Ed.), 948, 950, 953; 24 Corpus Juris 1130, No. 2703; Connor v. Railroad Co., 18 L.R.A. (N.S.) 1257; Purple v. Whitehead, 49 Vt. 187; Knight v. Moline, E. M. & W. R. R. Co., 140 N.W. 839, L.R.A. 1917A 39.

It is the absolute and mandatory duty of a railroad company engaged in interstate commerce, to equip and maintain not less than eighty-five per cent of the cars in the train with power brakes which may be used and operated by the engineer from the locomotive drawing such train...