Gulf & S.I.R. Co. v. Prine

• Decision Date: 08 July 1918
• Docket Number: 20341
• Parties: GULF & S. I. R. CO. v. PRINE ET AL
• Court: Mississippi Supreme Court

79 So. 62

118 Miss. 90

GULF & S. I. R. CO. v. PRINE ET AL

No. 20341

Supreme Court of Mississippi

July 8, 1918

Division B

APPEAL from the circuit court of Covington county, HON. W. H HUGHES, Judge.

Suit by Mrs. Laura Prine and others against the Gulf & Ship Island Railroad Company. From a judgment for plaintiffs, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

B. E Eaton and T. J. Wills, for appellant.

The deceased at the time he met his death was a private in the United States Army. He was engaged in an active duty, growing out of warfare at a time when the government was at war.

Appellant is a common carrier. The federal government had assumed control of the railroad to the extent of guarding the vulnerable points on the line as a war measure. It had placed deceased as a private in its army, at Brooklyn Bridge to guard a bridge as a means of commerce and an agency useful to the government. Its powers and rights over the railroad and deceased were paramount to all government powers vested in the state. The status of each is determined by the laws of the United States and not those of the state.

The status of both deceased and appellant under the circumstances is thus announced in Corpus Juris: "In this country a double citizenship exists, for the term applies both to membership in the nation considered as a whole and to membership in the state in which the individual may reside. The citizens of the United States resident within any state are subject to two governments, one state and the other national. Every citizen owes allegiance to both governments and within their respective spheres, must be obedient to the laws of each. In return he is entitled to demand protection from each within its own jurisdiction. There is a clear distinction between national citizenship and state citizenship, and this distinction is important in determining the respective rights, privileges, and immunities, pertaining to each citizenship." 11 C. J., page 776.

It was said by Chief Justice WAITE in the case of the United States v. Cruikshand et al., 92 U.S. 542, at page 549: "We have in our political system a government of the United States and a government of each of the several states. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other."

The states have delegated to the National Government exclusive power and right to declare war. Federal Const. art. 1 sec. 8, cl. 11. The states are prohibited from engaging in war without the consent of Congress. Federal Const., art. 1, section 10, cl. 3.

The states may exercise powers and they may control persons and property within their territory over which the federal government has control, as long as the National Government does not exercise the powers and functions of control. When the National Government assumes control, its powers are paramount and exclusive to that of the state. In re Quarrels, 158 U.S. 532; Second Liability Cases, 233 U.S. 1; Seaboard A. L. R. v. Horton, 233 U.S. 292.

The United States on April 6, 1917, recognized that a state of war existed between this country and Germany. The deceased Prine was a private in the United States Army, his status as a soldier in a time of war is fixed by the National Government. Appellant railroad is a common carrier over which the National Government could and did exercise paramount supervision and control in assigning Prine to his duty in respect thereto. As a war measure the government enlarged its usual supervision, exercised in peace times, by assuming control, protection, and preservation of the line against attack or destruction. It guarded the bridge with its army. The deceased Prine was a member of that army guarding that bridge under the rules and regulations, therefore, of the paramount sovereign to which, as citizens, each owed allegiance.

The status of each was fixed and determined by the laws of the United States. Under the conditions and circumstances in which these parties were placed, their status was fixed by the military law or the law of federal relations. In times of war the Civil power is temporarily suspended. Dow v. Johnson, 100 U.S. 168.

The status being fixed by the laws of the United States the rights, duties, and liabilities must be interpreted, and enforced according to those laws which the state court cannot administer.

There can be no recovery for another reason, even if Prine was killed in the act of performing his duty, though the actual control and operation of appellant had not been assumed by the federal government when Prine was killed, yet now that the government assumed control, the court takes judicial notice of the acts of the federal government whenever they occur, to render a judgment against appellant is to render judgment against the federal government for the death of a soldier killed in the performance of his duties as such. If a judgment is rendered, it must be paid by the government in accordance with the proclamation of the President, taking over the railroads of December 27, 1917, and the acts of Congress of March 21, 1918.

So that even admitting that Prine was negligently killed by appellant, there would be imposed upon the government a liability for placing a soldier where he was negligently killed when all must admit there is no liability if he be placed by the government in a place where he is wilfully killed, that is, on a battlefield confronting an enemy. In other words the government must compensate his heirs for his death by the negligence of an agency for which the government is responsible, when on the battlefield of France, if put there to combat the enemy and killed by the enemy, there is no liability.

It is clear not only that aside from any other question in the case there can be no recovery for the reasons discussed but also that the state court has no jurisdiction whatever since the state court is without power to determine military relationships and kindred questions and is without power to adjudicate the liabilities of the federal government to its soldiers. These are either for military or federal tribunals; most likely for congressional legislation.

The plaintiff relied upon the presumption raised by section 1985 of the Code, to make out a case and support a recovery. Their proof went further, however, and showed the conditions and circumstances which surrounded the deceased just prior to the time of his death. It showed that his post of duty was on the ground and that he was a trespasser when he went upon the track. Plaintiff's testimony showed further that the deceased was not on the track in front of the approaching train, within the vision of guards who were guarding at post No. 1, and post No. 2. If he was on the bridge, he was so concealed that he was not visible. This testimony exonerates the railroad company from blame.

Under the proven facts and circumstances in this case there can be but one of two conclusions drawn as to the manner in which the deceased met his death, if killed by the train. First: That he was on the bridge in front of the moving train, so concealed that it was impossible for the guards in front of the train and the engineer and fireman on the engine to see him. Second: That he was beside the track in the vicinity of the bridge, and caught the moving train and lost his hold, and fell beneath the cars.

The conditions and circumstances surrounding deceased and appellant's train and crew, as shown by the testimony in this case will permit of no other conclusion being reached. Either conclusion exonerates appellant from the charge of negligence and entitled it to a peremptory instruction.

This court has said that the statutory presumption can not be overthrown by conjectures. The circumstances of the accident must be clearly shown, and if so proven, must exonerate the company from blame. In the Hunnicut case, this court stated: "In the outset we will state that to do this is not absolutely necessary, as has been intimated, or suggested in the record, that an eye witness should be produced to testify that he saw the accident in any or all its details; but that fact may be proven by the circumstances. In other words, the prima-facie presumption created by the statute can be over-come by the circumstantial evidence, but it should be convincing, full, and complete." A. G. S. R. Co. v. Hunnicut, 53 So. 617, 98 Miss. 272.

In the case at bar, the deceased was stationed on the ground. He left his post of duty when he went in the pathway of the train. The engineer and fireman testified that they were on the lookout expecting to find soldiers at this bridge. They did see Green at post No. 2, and Wright at post No. 1, but did not see deceased on the bridge. They were corroborated in this testimony by the testimony of both Green and Wright. These facts if true, taken in connection with the circumstances and conditions in which the parties were placed, relieved the appellant railroad company from all presumptions of negligence or want of due care. If deceased was on the bridge and was concealed so that he could not be seen by the engineer and fireman, could not be seen by the guards, Green and Wright, and was struck by the passing train, the presumption of negligence raised by the statute yields to the proof.

The presumption is overthrown, and the railroad exonerated from blame, and therefore relieved from liability. If he was not struck by the engine but came...