Lunsford v. Louisville & N.R. Co., 38198

• Decision Date: 18 March 1960
• Docket Number: No. 38198,No. 2,38198,2
• Citation: 101 Ga.App. 374,114 S.E.2d 310
• Parties: Edna B. LUNSFORD v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., etc
• Court: Georgia Court of Appeals

Page 310

114 S.E.2d 310

101 Ga.App. 374

Edna B. LUNSFORD v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., etc.

No. 38198.

Court of Appeals of Georgia, Division No. 2.

March 18, 1960.

Rehearing Denied March 31, 1960.

Hewlett, Hewlett & Wall, Sam D. Hewlett, Jr., Atlanta, for plaintiff in error.

Heyman, Abram & Young, Herman Heyman, Atlanta, for defendants in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1. 45 U.S.C.A. § 51, a part of the Federal Employers' Liability Act, provides that every common carrier by railroad in interstate commerce 'shall be liable in damages to any person suffering injury while he is employed' by the carrier, or to designated survivors in case of death, where the injury results 'in whole or in part' from the negligence of the carrier. It thus, as to employees or their survivors, modifies the common law rules relating to degree of negligence, assumption of risk, fellow servant doctrine, and other like respects. It does not state, as does the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905, that its provisions shall be exclusive of all other liability to the employee or 'anyone otherwise entitled to recover damages * * * on account of such injury.' Where the negligence alleged is a violation of a provision of the Safety Appliance Act, 45 U.S.C.A. § 2, this act and the Federal Employers' Liability Act are to be construed and applied together. International-Great Northern R. Co. v. United States, 5 Cir., 268 F.2d 409. The Safety Appliance Act contains no provisions either limiting its application exclusively to employees or denying to third persons whose rights arise because of injury to an employee redress thereunder. A violation of the act may be alleged and proved by one not an employee and who does not complain because of injury to an employee. Brady v. Terminal Railroad Association of St. Louis, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614.

2. It is recognized in this State that a wife has an independent right of action for the loss of consortium of her husband due to a tortious injury inflicted upon him which denies her this right, although she may not in such action recover any item of damages which would be a proper item of damages in an action directly by the husband. Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24. The request to overrule this decision is denied.

3. This writ of error raises the primary question of whether, under the foregoing rules of law, a wife may sue for loss of consortium occasioned by injuries to her husband, an employee of a railroad public carrier engaged in interstate commerce, who is injured by negligence of the railroad proximately resulting from a violation of one of the provisions of the Federal Safety Appliance Act, as against the contention of the defendant that Congress, in passing the Federal Employers' Liability Act, has preempted the field of legislation relating to the liability of railroad companies for injuries received while engaged in interstate commerce and thus impliedly excluded any remedy other than that provided for in the Act.

Congress had not, by the terms of the act in question, preempted the field of legislation so as to bar or diminish the rights of third persons arising under the common law or the statutes of the several States. There is no language in the Federal Employers' Liability Act, as there was in the Longshoremen's and Harbor Workers' Compensation Act, attempting to define and limit the liability of the employer toward any person other than the employee. Congress has the power 'to regulate Commerce * * * among the several States' (U.S. Constitution, Art. I, Sec. VIII, Par. 3), and in regulating commerce it has the power to regulate the rights and liabilities or employers and employees relating to each other when the parties are engaged in interstate commerce, but whether it has the right to regulate such a relationship between one party, who is engaged in interstate commerce, and another party who is not, so as to abridge the rights and remedies of the latter under State law, without at the same time invading those rights reserved to the State under the Tenth Amendment, is a different question. When Anderson v. Savannah Machine, etc., Co., 96 Ga.App. 621, 100 S.E.2d 621 was before us, that question was not presented, and, if it had been, the Supreme Court of Georgia, and not this court, would have had jurisdiction of the question.

What we have here is a different situation. The plain wording of 45 U.S.C.A. § 51 does not deal with the common law right of the wife of a railroad employee to sue the railroad for negligence which resulted in injury to herself other than the injury for which her husband may seek his own recovery within the Federal statute. It does not, as it might well have attempted to do by language like that incorporated in other Federal statutes, endeavor to restrict the liability of the employer to the employee only. But what the act has not said the United States Supreme Court has read into it in the case of New York Central & Hudson River Railroad Co. v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 621, 61 L.Ed. 1194. Counsel for the plaintiff in error attempts to distinguish this case, but we concur with the able trial judge who sustained the general demurrer to this petition that the Tonsellito case cannot be distinguished, in view of the language of the decision, from the case at bar. It was there stated: 'The court of errors and appeals ruled, and it is now maintained, that the right of action asserted by the [plaintiff] father [of the employee] existed at common law and was not taken away by the Federal Employers' Liability Act. But the contrary view, we think, is clearly settled by our recent opinions in New York C. etc. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045, 37 S.Ct. 546, and Erie Railroad Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1037, 37 Sup.Ct. 556 * * *. There we held the act 'is comprehensive and also exclusive' in respect of a railroad's liability for injuries suffered by its employees while engaging in interstate commerce. 'It establishes a rule or regulation which is intended to operate uniformly in all the states, as respects interstate commerce, and in that field it is both paramount and exclusive.' Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the state.' This constitutes a holding to the effect that the independent cause of action of a person other than an employee of an employer engaged in interstate commerce, which however arises because of such injury, is impliedly destroyed by the wording of the Federal statute.

We...