Huber v. Baltimore and Ohio Railroad Company

• Decision Date: 18 May 1965
• Docket Number: Civ. A. No. 15755.
• Parties: Dolores E. HUBER, administratrix of the Estate of Earl R. Huber, Deceased v. The BALTIMORE AND OHIO RAILROAD COMPANY, a body corporate.
• Court: U.S. District Court — District of Maryland

241 F. Supp. 646

Dolores E. HUBER, administratrix of the Estate of Earl R. Huber, Deceased v. The BALTIMORE AND OHIO RAILROAD COMPANY, a body corporate.

Civ. A. No. 15755.

United States District Court D. Maryland.

May 18, 1965.

Paul Berman and Bayard Z. Hochberg, Baltimore, Md., for plaintiff.

H. Russell Smouse, Baltimore, Md., for defendant.

David Freishtat, Baltimore, Md., for movant.

NORTHROP, District Judge:

This is an action arising under the Federal Employer's Liability Act (hereinafter FELA), 45 U.S.C.A. § 51 et seq., as the consequence of an accident which took place on March 31, 1964, in the District of Columbia. The accident resulted in the death of plaintiff's husband, Earl R. Huber, who was allegedly acting under the defendant's orders when it occurred. This suit is brought by the plaintiff, Dolores E. Huber, for her own benefit, both individually and as surviving widow, and for the benefit of the four surviving children of the plaintiff and the decedent. Dennis Hannahoe, claiming to be the illegitimate child of the decedent, Earl R. Huber, has petitioned this court by Anna Hannahoe, his mother and next friend, to permit him to intervene.

The intervenor states that one Anna Hannahoe gave birth to Dennis Hannahoe, her illegitimate son, on November 2, 1955. On May 8, 1956, the Criminal Court of Baltimore City, Bastardy Information Docket 1288 of 1955, ordered the decedent, Earl R. Huber, to pay $24.00 per month for the support and maintenance of Dennis Hannahoe. The decedent had been making the monthly payments up to the time he was killed. The intervenor now contends that under the applicable law, he, as an illegitimate child of a deceased father, falls within the protection of the FELA.

The original plaintiff (hereinafter Huber) objects to the intervention on the grounds (1) that the intervenor's claim under the FELA depends on Maryland substantive law, and (2) that under the appropriate law an illegitimate son who was not totally dependent on his putative father and who was not a member of the deceased father's household cannot qualify as a claimant under the FELA.

The intervenor (hereinafter Hannahoe) contends that when referred to the law of the forum, we are confronted with Article 67, Section 2 of the Maryland Code, the pertinent part of which reads:

"In any action instituted in the courts of this State where it shall appear that the death of a person has been caused by the wrongful act, neglect or default of a vessel or of another person, firm or corporation, and such wrongful act, neglect, or default shall have occurred outside of the State of Maryland, whether in another state, the District of Columbia or territory of the United States, the courts of this State shall apply the law of such other state, District of Columbia or territory of the United States, to the facts of the particular case, as though such foreign law were the law of this State, * * *."

As Hannahoe points out, Section 2 must be read in conjunction with the Maryland Rule Q41 (formerly Article 67, Section 3); this reads:

"(b) Cause of Action in Foreign Jurisdiction.

"Where such cause of action arose in a foreign jurisdiction, any person who is entitled to bring suit under the laws of such jurisdiction may bring suit in this State."

She then contends that the proper construction of Section 2 compels the application of the law of the District of Columbia which, she further asserts would allow an illegitimate child to recover for the death of his putative father. And, according to her understanding, she implies that Rule Q41(b) confers the substantive right of recovery on the person who would be entitled to bring suit under the applicable law.

In Kaufmann v. Service Trucking Co., 139 F.Supp. 1 (D.Md.1956) Chief Judge Thomsen of this District made what I feel is the proper construction of the predecessor to Rule Q41(b); at page 4 of his opinion:

"The purpose of the Act of 1947 is not entirely clear. It has never been construed by any court in a published opinion, and neither counsel nor I have ever heard of a case in which it has been invoked. The first two subsections, (a) and (b), seem intended to eliminate possible procedural difficulties, to make clear in whose name a suit authorized by sec. 2 may be brought in the Maryland courts."¹ emphasis added

Thus, in deciding whether the law of the District of Columbia or the laws of the State of Maryland should be applied to determine an illegitimate's rights in this case, I do not ascribe to Rule Q41(b) the buttressing effect on Section 2 that Hannahoe does.

Neither do I read Section 2 so broadly as Hannahoe. Her main contention is that since the decedent's death occurred in the District of Columbia, and since the Maryland Lord Campbell's Act instructs the forum court to apply the law of the place of the death, then this court should exclusively apply District of Columbia law — even to decide the substantive question of whether a Maryland illegitimate child is entitled to sue under the FELA. It is true that in Kaufmann, Judge Thomsen referred to the general rule cited in Betts v. Southern R. Co., 71 F.2d 787 (4 Cir. 1934) at page 789,

"that all matters pertaining to the substantive right of recovery under a wrongful death statute, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred."

But the issue before Judge Thomsen in Kaufmann was whether an Illinois appointed administrator could maintain an action in a Maryland federal court under the Virginia Wrongful Death Act without having qualified in Virginia. The problem there was more procedural in nature. In this case the first problem with which I am confronted is whether the courts of Maryland would adopt a broad reading of Section 2 and apply the law of the place of death to determine all conceivable issues save strictly procedural ones, or whether they would reserve as for Maryland law the prerogative of determining the right of an illegitimate child to recover for wrongful industrial death. I am constrained to favor the latter view.

Section 2 of Maryland's Lord Campbell's Act was enacted to remedy a defect therein readily apparent in actions brought in Maryland for wrongful deaths occurring elsewhere. Prior to 1937 the Maryland Court of Appeals refused to permit such a suit in the Maryland courts unless the wrongful death statute of the jurisdiction where the death took place was alike in design and purpose to the Maryland statute. See, Olewiler v. Fullerton Supply Company, 162 F.Supp. 563 (D.Md.1958). Thus, tortfeasors could escape liability for deaths they caused outside the state by having or locating their assets in Maryland.² The issue here is not whether suit is properly brought in Maryland. Further, the problems raised in Kaufmann and Olewiler, which necessarily involved Section 2, are not relevant here. I think the better reasoned approach is that taken by the Tennessee District Court in Tune v. Louisville & Nashville Railroad Co., 223 F.Supp. 928 (D.M.D.Tenn.1963).

Hannahoe contends that Tennessee has no statutory provision comparable to Section 2. The court in Tune, however, recognized the general rule of applying the law of the place of injury.³ It went on, though, to state its reasons for excepting to the rule in situations similar to the one here:

"The predominant consideration here is the legal relationship between these children and their putative father. The burden of caring for them will fall on the state in which they reside. Any obligation of support or other legally recognized relationship between them and their putative father in this case must arise under the law of Tennessee, the state with the paramount interest in the matter. In this respect the state of Georgia has no interest or concern. Its only connection is by virtue of the fact that the deceased was killed in Georgia. Since the FELA is national in its scope, the fact that the employee was killed in Georgia should not require a result different from that which would have obtained had the decedent been killed in Tennessee. Accordingly, Georgia law should not be deemed controlling, although from a cursory examination of the law of Georgia it appears that there as a matter of state law, illegitimate children would not be entitled to recover under the FELA." (at p. 931)

Were I to accept Hannahoe's argument, if the death had occurred in Georgia or Massachusetts, there apparently would be no recovery; if in Tennessee or New Jersey, there would be. But it is too absurd a situation to have Hannahoe's rights depend on the laws of the jurisdiction where the tort occurred. Her chance of recovery (and the concomitant chance of burden to the state) would be no more predictable (much less reliable) than the flip of a coin. I do not believe that the Maryland Court of Appeals, comprehending the problem, would permit a situation, in which Maryland has the supreme interest, to be controlled by the law of another state: especially when applying other states' laws would produce dissimilar results.

Resolving this first problem, and insofar as non-federal law be dispositive of the principal issue in this case, namely, whether a partially dependent illegitimate child may recover for the death of his putative father, I conclude that Maryland law would control.

The FELA is a statute which imposes liability on employers for injuries or death inflicted on employees from negligence.⁴ And included therein in the first category of those for whose benefit recovery may be made are the "children of such employee". The Supreme Court has not yet decided whether the word "children" is to be interpreted as a matter of federal or state law. But it has held that state law should be applied to determine who are "next of kin" under the Act. Seaboard Air Line Railway v. Kenny, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762 (1916).⁵ However, viewing...