Mallory v. Pioneer Southwestern Stages

• Decision Date: 11 December 1931
• Docket Number: 504.,No. 503,503
• Citation: 54 F.2d 559
• Parties: MALLORY v. PIONEER SOUTHWESTERN STAGES, Inc., et al. MORRIS v. SAME.
• Court: U.S. Court of Appeals — Tenth Circuit

54 F.2d 559 (1931)

MALLORY v. PIONEER SOUTHWESTERN STAGES, Inc., et al.

MORRIS v. SAME.

Nos. 503, 504.

Circuit Court of Appeals, Tenth Circuit.

December 11, 1931.

Pearce C. Rodey, of Albuquerque, N. M. (Jos. L. Dailey, of Albuquerque, N. M., F. P. Sizer, H. A. Gardner, and D. A. Lockmiller, all of Monett, Mo., on the brief), for appellants.

E. R. Wright, of Santa Fé, N. M. (Donovan N. Hoover, of Santa Fé, N. M., on the brief), for appellees.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

PHILLIPS, Circuit Judge.

These are actions to recover damages for alleged wrongful deaths. They involve the same question, and were argued and submitted together. The trial court sustained demurrers to the amended complaints. Appellants elected not to plead further, and judgments of dismissal were entered.

The material facts, as set forth in such amended complaints, are as follows: On April 11, 1930, appellees, Arizona corporations, were operating a motor bus line through New Mexico for the transportation of passengers and express for hire as common carriers, under a certificate of public convenience and necessity issued by the State Corporation Commission of New Mexico. On such date, a motor bus of appellees, in which appellants' intestates were riding as passengers for hire, was struck by a train being operated by the Atchison T. & S. F. Railway Company at what is known as the Isleta crossing in Bernallilo County, and appellants' intestates were instantly killed. Such intestates at the time of their deaths were unmarried, male adults, and neither left a surviving wife, minor child, or children. The deaths of such intestates were caused by the negligent operation of such motor bus by the driver in charge thereof, a servant and employee of appellees.

The New Mexico statute on death by wrongful act was enacted in 1882. It was a part of a general act on damages. (See chapter 61, N. Mex. Laws 1882.) Sections 1, 2 and 3 of such act read as follows:

"Section 1. Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver, of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance, at the time any injury is received, resulting from, or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued and recovered; first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not of a negligent defect or insufficiency.

"§ 2. Whenever the death of the person shall be caused by a wrongful act, neglect or default of another, and the act or neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

"§ 3. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 1 of this act, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default."

It will be observed that section 1 is a special statute with respect to the wrongful death of any person resulting from the "negligence, unskillfulness or criminal intent of any officer, agent, servant or employee" while "running, conducting or managing any locomotive, car, or train of cars, or of any driver, of any stage coach or other public conveyance, while in charge of the same as driver"; or of any passenger resulting from any "defect or insufficiency" in any railroad locomotive, car, stage coach or other public conveyance, where the decedent leaves surviving kin coming within the relationships named in the statute; and that it fixes the amount of recovery at $5,000.

It will be further noted that section 2 was a general act covering all other cases of wrongful death, where the decedent leaves surviving kin coming within the relationships named in the statute, and fixes the damages at not to exceed $5,000.

Where there are two statutes upon the same subject and the earlier is special and the later general, the presumption is, in the absence of express repeal or absolute incompatibility, that the special is intended to remain in force as an exception to the general. Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; Rodgers v. United States, 185 U. S. 83, 87, 89, 22 S. Ct. 582, 46 L. Ed. 816; Stoneberg v. Morgan (C. C. A. 8) 246 F. 98, 100.

A fortiori such must be the construction where the special and the general laws are a part of the same act.

It is clear that the legislature did not intend to create two rights and provide two remedies for the same wrongful death. The statute, as originally adopted, limited the right created by section 1 and the right created in section 2 to the same surviving kin. It follows that wrongful deaths falling within the provisions of section 1 were excluded from the general language of section 2.

Section 2, therefore, did not cover persons killed as a result of the improper operation of a locomotive, car, stage coach or other public conveyance, or passengers killed as a result of defects in any railroad locomotive, car, stage coach or other public conveyance.

Such was the holding of the Supreme Court of the Territory of New Mexico in Romero v. Atchison, T. & S. F. R. Co., 11 N. M. 679, 72 P. 37, 38, where the court said:

"There was an evident intention on the part of the Legislature of 1882 to make a distinction between the common carrier and other corporations and persons causing death by wrongful act, in regard to liability. It will be observed that section 1 of the Laws of 1882 is distinctly limited to deaths caused by the wrongful act of common carriers, and their agents, servants, and employees, while engaged in running and handling locomotives, trains, stage coaches, or other public conveyances, whereas sections 2 and 3 of the same act are general in terms, and evidently intended to refer to deaths caused by the wrongful act of persons and corporations other than common carriers, as embraced in section 1. As a further evidence of this distinction, it is provided that, in case of death by wrongful act of the common carrier, the party liable `shall forfeit and pay to the person or passenger so dying, five thousand dollars'; but, under sections 2 and 3 of the original act, any sum not exceeding $5,000 was recoverable. Under the first section the amount of the recovery was arbitrarily fixed by statute, but under the other sections the damages were to be fixed by a jury, which was authorized to take into consideration the `mitigating or aggravating circumstances.' It would seem strange indeed that the Legislature should in one section of an act provide that a person or passenger killed by the wrongful act of the common carrier should recover the full sum of $5,000, and in the second and third sections of the same act provide for damages in any sum such as a jury might assess, not exceeding $5,000, if both sections were intended to apply to the same class of corporations or persons. Remembering, however, the distinction between common carriers and other persons and corporations above referred to, the intention of the Legislature is both evident and consistent."

It will be noticed also that, under the statute as originally enacted, no right of action was created either by section 1 or sections 2 and 3, when the decedent was an adult, unless such decedent left either a surviving husband or wife, or a minor child or children.

Section 3 was amended in 1891 (see chapter 49, N. Mex. Laws 1891) to read as follows:

"Section 2310. Every such action as mentioned in the next preceding section shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair...