Marshall v. Wabash R. Co.

• Decision Date: 09 April 1891
• Citation: 46 F. 269
• Parties: MARSHALL v. WABASH R. CO.
• Court: U.S. District Court — Southern District of Ohio

46 F. 269

MARSHALL v. WABASH R. CO.

United States Circuit Court, S.D. Ohio, Western Division.

April 9, 1891

H. D Peck, for plaintiff.

Lawrence Maxwell, Jr., and Charles E. Peers, for defendant.

SAGE J., (orally.)

This cause is before the court on an objection to the jurisdiction, and to the right of the plaintiff to maintain the action under the statute upon which it is based.

The action is to recover $5,000 damages by reason of the death of the minor son of the plaintiff, which it is alleged was caused by the negligence and unskillfulness of the employes of the defendant while conducting and managing a train of cars in the state of Missouri, upon which the deceased was a passenger. It is conceded that the deceased was the illegitimate son of the plaintiff. The father is not joined in the action, nor is there any allegation that he is dead.

The objection to the jurisdiction is that the statute (section 4425, Rev. St. Mo. 1889) provides for damages whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent set forth and described in the section, and that the defendant 'shall forfeit and pay for every person or passenger so dying the sum of $5,000, which may be sued for and recovered' by the persons named; the section containing the following clauses:

'If such deceased be a minor, and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption, 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.'

There is also a right of action given to the minor child or children of the deceased, whether they be natural born or adopted. Counsel for the defense urge that this statute is penal. To this counsel for the plaintiff answer that the supreme court of Missouri, in Coover v. Moore, 31 Mo. 574, held that the sum which might be recovered under the statute then in force-- which, so far as it affects this question, is in no essential different from the statute above quoted-- was not intended as a penalty, but as compensatory damages, liquidated by the statute; the fact being that under the act only persons presumed to be interested in the life of the deceased may institute an action under it.

Counsel for the plaintiff refer also to Philpott v. Railway Co., 85 Mo. 164, in which the court, considering the same statute, say:

'The statute is remedial, and is designed to be compensatory in part. But it is more than this. The case at bar demonstrates the fact that it cannot be wholly compensatory, for the amount of the recovery, being fixed, as it is, is altogether out of proportion to the value of the services of the son for the remainder of the period of his minority. The law is also designed to guard and protect persons and the traveling public against the wrongful acts thereby prohibited. Whether the amount warded is denominated damages, compensatory damages, liquidated, as it was in Coover v. Moore, 31 Mo. 574, or a penalty, is not material. The law, as well as being compensatory, is of a penal and police nature, and can without objections subserve both purposes at one and the same time.

'The right to recover is therefore not made to depend upon services which the deceased could have rendered to the persons suing. The emancipation of the son by the parent, if alleged and proved, constitutes no defense.'

In that case the action was by husband and wife because of the death of their minor son, between 19 and 20 years of age, occasioned by the collision of two trains of cars on the defendant's road in the state of Missouri. The defendant, among other things, answered that the plaintiffs and their son were residents and citizens of the state of Texas; and, further, that they had emancipated their son from all paternal control and interference. These defenses were, on motion of the plaintiffs, stricken out, and the case was taken up to the supreme court upon assignments of error for that, among other rulings.

Now it is insisted that these decisions settle the proposition that the statute under consideration is not a penal statute, and that this court is bound by those decisions. I do not concur with either proposition. It is true that the court in Coover v. Moore say that the damages are compensatory. So they may be in certain cases, and in some cases less than full compensation. But where the plaintiff is not required to offer any evidence proving damages, and the defendant is not permitted to offer any evidence disproving damages, and the recovery is to be one fixed sum in every case, I cannot understand how the statute under which that is done can be regarded as providing compensation merely, and not penal. In Philpott's Case, however, the ruling is that the statute is penal, and that it is also to a certain extent compensatory. I do not understand that this court is bound by the decisions of the supreme court of Missouri upon this point. In Chicago v. Robbins, 2 Black, 418, the supreme court of the United States ruled that where private rights are to be determined by the application of common-law rules alone, the supreme court, although entertaining for state tribunals the highest respect, does not feel bound by their decisions; and in Hollingsworth v. Tensas, 17 F. 109, it is held that, though a state decision may apply a state statute, yet a national court is not bound to follow it in derogation of established principles of jurisprudence. Thus, a decision administering a statute which allows private property to be taken for public use without compensation is not obligatory on a federal court. In Mohr v. Manierre, 7 Biss. 419, it was...