Hein v. Great Northern Railroad

• Decision Date: 20 July 1916
• Court: North Dakota Supreme Court

159 N.W. 14

34 N.D. 440

FLORENCE HEIN v. GREAT NORTHERN RAILROAD, a Corporation

Supreme Court of North Dakota

July 20, 1916

Appeal from District Court, Ward County, Leighton, Judge.

Reversed and ordered dismissed.

Judgment ordered set aside and reversed, and dismissal directed.

Murphy & Toner, for appellant.

If plaintiff was living in adultery, and the decedent did not support her, she could not recover in this action. The court erroneously limited and restricted defendant in its proof in these respects. Defendant had the right to have evidence of these facts go to the jury. Ferren v. Moore, 59 N.H 106; Boos v. Minneapolis, St. P. & S. Ste. M. R. Co. 127 Minn. 381, 149 N.W. 660; Stimpson v. Wood, 59 L T. N. S. 218, 57 L. J. Q. B. N. S. 484, 36 Week. Rep. 734, 52 J. P. 822; Ft. Worth & D. C. R. Co. v. Floyd, Tex. Civ. App. , 21 S.W. 544; Atrops v. Costello, 8 Wash. 149, 35 P. 620; Cole v. Mayne, 122 F. 836; 2 Labatt, Mast. & S. § 727.

"It is a right given to the parties named in the statute to recover damages for the death of their relative, when, and only when, the death has caused such parties a pecuniary loss, and to the extent only of such pecuniary loss." It is clear that decedent was not contributing to the support of the plaintiff at the time of his death, and for a long time prior thereto, and therefore, if plaintiff was entitled to anything, it would be only nominal damages. Hurst v. Detroit City R. Co. 84 Mich. 539, 48 N.W. 44; Charlebois v. Gogebic & M. R. Co. 91 Mich. 59, 51 N.W. 812; McGown v. International & G. N. R. Co. 85 Tex. 289, 20 S.W. 80; Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941; Orgall v. Chicago, B. & Q. R. Co. 46 Neb. 4, 64 N.W. 450; Belding v. Black Hills & Ft. P. R. Co. 3 S.D. 369, 53 N.W. 750; Safford v. Drew, 3 Duer, 627; Duckworth v. Johnson, 4 Hurlst. & N. 653, 157 Eng. Reprint, 997, 29 L. J. Exch. N. S. 25, 5 Jur. N. S. 630, 7 Week. Rep. 655; Central of Georgia R. Co. v. Alexander, 144 Ala. 257, 40 So. 424; Bromley v. Birmingham Mineral R. Co. 95 Ala. 397, 11 So. 341; Louisville & N. R. Co. v. Jones, 130 Ala. 456, 30 So. 586; Louisville & N. R. Co. v. Morgan, 114 Ala. 449, 22 So. 20; Kelley v. Chicago, M. & St. P. R. Co. 50 Wis. 381, 7 N.W. 291, 2 Am. Neg. Rep. 294.

The case here proved is clearly one under the Federal Employers' Liability Act. Under the case proved, decedent's widow was not the proper party plaintiff. She cannot maintain this action. The cause of action pleaded and sought to be enforced was not recognized at the common law. It must have been brought under the state statute, and this statute is superseded by the Federal act. Michigan C. R. Co. v. Vreeland, 227 U.S. 59-67, 57 L.Ed. 417-420, 33 S.Ct. 192; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 57 L.Ed. 1129, 33 S.Ct. 651, Ann. Cas. 1914C, 156; Toledo, St. L. & W. R. Co. v. Slavin, 236 U.S. 454, 59 L.Ed. 671, 35 S.Ct. 306; Pedersen v. Delaware, L. & W. R. Co. 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Bacon v. Texas, 163 U.S. 207, 215, 41 L.Ed. 132, 135, 16 S.Ct. 1023; Norfolk & S. Turnp. Co. v. Virginia, 225 U.S. 269, 56 L.Ed. 1086, 32 S.Ct. 828; Employers' Liability Act of April 22, 1908, 35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657; Second Employers' Liability Cases, Mondou v. New York, N. H. & H. R. Co. 223 U.S. 153, 56 L.Ed. 327, 347, 38 L.R.A. (N.S.) 44, 32 S.Ct. 169, 1 N. C. C. A. 75; Briggs v. Walker, 171 U.S. 466, 471, 43 L.Ed. 243, 245, 19 S.Ct. 1; American R. Co. v. Birch, 224 U.S. 547, 557, 56 L.Ed. 879, 882, 32 S.Ct. 603; Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 576, 57 L.Ed. 355, 363, 33 S.Ct. 135, Ann. Cas. 1914B, 134; Troxell v. Delaware, L. & W. R. Co. 227 U.S. 434, 443, 57 L.Ed. 586, 591, 33 S.Ct. 274.

The deceased was engaged in interstate commerce. The mere fact that the yard was a terminal point for that train does not change the situation. McNeill v. Southern R. Co. 202 U.S. 543, 559, 50 L.Ed. 1142, 1147, 26 S.Ct. 722; Johnson v. Southern P. Co. 196 U.S. 1, 21, 49 L.Ed. 363, 371, 25 S.Ct. 158, 17 Am. Neg. Rep. 412.

The true test is: "Is the work in question a part of the interstate commerce in which the carrier is engaged?" McCall v. California, 136 U.S. 104, 109, 111, 34 L.Ed. 391-393, 10 S.Ct. 881, 3 Inters. Com. Rep. 181; Zikos v. Oregon R. & Nav. Co. 179 F. 898; Central R. Co. v. Colasurdo, 113 C. C. A. 379, 192 F. 901; Darr v. Baltimore & O. R. Co. 197 F. 665; Northern P. R. Co. v. Maerkl, 117 C. C. A. 237, 198 F. 1.

Deceased was engaged in the doing of minor tasks which were essentially a part of the larger one,--the interstate commerce in which the company and these immediate employees were then engaged. Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 1, 116 C. C. A. 156, 196 F. 336; Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A. (N.S.) 8, 130 P. 897; Johnson v. Southern P. Co. supra; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 161, 57 L.Ed. 1129, 1134, 33 S.Ct. 651, Ann. Cas. 1914C, 156; Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 503, 58 L.Ed. 1062, 1069, L.R.A. 1915C, 1, 34 S.Ct. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834.

E. R. Sinkler, Francis J. Murphy and Geo. A. McGee, for respondent.

The real issue in this case, on the question of support, is not what deceased was doing two years prior to his death toward supporting plaintiff, but what support he was giving her immediately prior to and at the time of his death. Their relations two years prior were immaterial. It is purely a question of pecuniary compensation. Louisville & N. R. Co. v. Orr, 91 Ala. 546, 8 So. 360.

In an action brought under the statute by a widow to recover damages for the wrongful killing of her husband, where the complaint shows that deceased left surviving him a widow and minor children of tender years, no specific allegations showing that such widow and children suffered pecuniary damages by the loss of such life are required. Haug v. Great Northern R. Co. 8 N.D. 23, 42 L. R.A. 664, 73 Am. St. Rep. 727, 77 N.W. 97, 5 Am. Neg. Rep. 467.

The mere fact of hauling gravel from one state to another, for the use and repair of the defendant's own railroad, does not show that defendant was engaged in interstate commerce; the facts do not show that defendant was engaged in commerce. Norfolk & W. R. Co. v. Com. 93 Va. 749, 34 L.R.A. 105, 57 Am. St. Rep. 827, 24 S.E. 837; 7 Cyc. 412.

Defendant was not even engaged in the repair of its main line, assuming that it might be commerce had it been so engaged; but decedent and defendant were repairing other pieces of track. Zikos v. Oregon R. & Nav. Co. 179 F. 893; Pedersen v. Delaware, L. & W. R. Co. 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779.

OPINION

GOSS, J.

Plaintiff, widow of Michael Hein, deceased, sues under the state statutes governing recovery for death by wrongful act, §§ 8321-8323, Comp. Laws 1913. The complaint pleads acts of alleged negligence as having caused the death of Michael Hein.

The proof establishes that deceased came to his death through a collision between two gravel trains both hauling gravel en route to Montana, but at the time within this state. At the close of the testimony the court denied a motion for a directed verdict of dismissal, based "On the ground that the undisputed evidence discloses that this case is one in which the Great Northern Company's liability, if any, is controlled by the Federal statute known as the Employers' Liability Law; and if liable, said company is only liable to the personal representative of the deceased, Michael Hein, and not to the plaintiff; and that the party plaintiff here is not the real party in interest, or a person having a cause of action against said defendant railroad company." A verdict for $ 4,000 was returned.

Assignments based upon the denial of said motion test plaintiff's right to maintain this action and sustain her recovery. Two questions necessary of decision are raised. 1. Does the Federal Employers' Liability Act apply under the proof? 2. Can the benefit of Federal statutes be invoked by a directed verdict where the answer makes no reference to such a defense, or at all. This latter question first discussed, is answered in the syllabus of Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838, 34 S.Ct. 581, Ann. Cas. 1914C 168, that "the operation and effect of the Employers' Liability Act upon the rights of the parties are involved in an action for negligence where the complaint alleges and the proof establishes that the employee was engaged in, and the injury occurred in the course of, interstate commerce, even though the act was not referred to in the pleadings or pressed in the trial." Of the same contention here made, the opinion reads: "This simply amounts to saying that the Employers' Liability Act may not be applied to a situation which is within its provisions unless in express terms the provisions of the act be formally invoked. Aside from its manifest unsoundness considered as an original proposition, the contention is not open, as it was expressly foreclosed in Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477 at 477-482, 56 L.Ed. 1171 at 1171-1173, 32 S.Ct. 790." Or in the words of the note to Lamphere v. Oregon, R. & Nav. Co. 47 L.R.A. N.S. 1, at p. 75: "In order to have the benefit of the Federal act, it is not necessary that the act be mentioned, or that the plaintiff claim that he is suing under the act." And if true as to a plaintiff, it should likewise be true as to a defendant. "The authorities all agree with the reported case, that it is not necessary in order to entitle a plaintiff to a recovery under the Federal Employers' Liability Act, that the statute should be expressly referred to in the...