McVey v. Illinois Central Railroad Company

• Decision Date: 03 February 1896
• Citation: 19 So. 209,73 Miss. 487
• Court: Mississippi Supreme Court
• Parties: WILLIE MCVEY, ADMX., v. ILLINOIS CENTRAL RAILROAD COMPANY

19 So. 209

73 Miss. 487

WILLIE MCVEY, ADMX., v. ILLINOIS CENTRAL RAILROAD COMPANY

Supreme Court of Mississippi

February 3, 1896

October 1895

FROM the circuit court of Clay county HON. C. H. CAMPBELL, Judge.

The provision of the constitution of 1890 (§ 193), relied on by the appellant, is that under which railway employees have the same rights and remedies allowed to other persons notwithstanding the fact that the injury may have resulted from the negligence of a superior agent or officer, or of a fellow-servant engaged in another department of labor, etc. It concludes as follows: "Where death ensues from any injury to employees, the legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons . . . and this section shall not be construed to deprive any employee of a corporation of any right or remedy that he now has by the law of the land. The legislature may extend the remedies herein provided for to any other class of cases."

The suit was brought by the appellant, the widow of John S McVey, as his administratrix. The declaration alleges that the plaintiff was appointed administratrix for the purpose of bringing the suit, and concludes with the allegation that she and her child were his only heirs, and that his estate owed no debts. It does not allege that the deceased employee survived the accident; indeed, it alleges that he was killed in the same. The evidence showed that he was dead when found under the wreck, a few minutes after the accident. The court gave a peremptory instruction to find for the defendant. Appeal by plaintiff.

Judgment affirmed.

Critz & Beckett, for the appellant.

Section 193, constitution 1890, embraces two classes of employees--those who could have sued at common law, without the aid of the constitution, and those who could not. This is made plain by its concluding words. In Railroad Co. v. Hunter, 70 Miss. 471, where it was held that, when an employee was killed, it was necessary for the administrator to bring the suit, it was said that the constitution prescribes the remedy in the class of cases it creates. In the class of cases which it did not create, but which are embraced in it, the remedy provided by it is, under the above language, concurrent with any right or remedy which existed before. The constitution plainly meant to enlarge, not restrict or diminish, and at the same time, as far as possible, to harmonize the laws. Hence, in all cases "where death ensues, " the administrator, it says, shall have the right to sue; and, as the constitution is mandatory that it shall not be construed to take away any rights then existing "by the law of the land, " it is plain that the administrator can assert any right which before existed by this law of the land.

The declaration and evidence bring the case within that class of cases where a recovery could have been had before and without the aid of the constitution. It does not belong to that class where new rights were created, but to that class where an additional remedy was provided and old rights were preserved. It charges that the death of McVey was caused by a defective track and too heavy an engine. If this is true, the defendant would be liable, in the absence of the constitutional provision, for the master is bound to furnish safe and suitable "ways and appliances." The section of the constitution cited covers every class of employees and every class of injuries to them, whether death results or not, and whether the injury was actionable anterior to the constitution or not. There were cases where an injury or death of an employee was actionable before the constitution, as in case of a defective track, unsafe cars, ways and appliances, etc.--in fact, in all cases where the injury was not caused by the negligence of a "fellow-servant." While the primary object of the constitution was to enlarge and extend the right of recovery to nearly all cases where the injury resulted from the negligence of a fellow-servant, yet, in doing so, it clearly embraced and covered the whole law of injuries to employees. It made the whole law as to all classes and kinds of injuries to employees and former rights and remedies were only preserved by its express proviso. Without this proviso, all former rights and remedies would have been superseded and repealed by substitution, under a well-known rule of interpretation. Swan v. Buck, 40 Miss. 268; Railroad Co. v. Weiner, 49 Miss. 725; Myers v. Marshall County, 55 Miss. 344. The constitution ought not to be construed as to have one rule for one class of cases coming under it and another rule for another class. It is clear that, as to all injuries to employees which were not actionable before the constitution was adopted, it creates the right of action, and where a law creates a right and prescribes the remedy, that remedy is exclusive. Brown v. Beatty, 34 Miss. 227. Hence, as to this class of injuries, when death results, the suit not only may, but must, be brought by the administrator. As to the other class of injuries--those which antedated the constitution--the suit may be brought by the administrator; but this is not compulsory, for it is provided that "this section shall not be construed so as to deprive any employee or his legal representative of any right or remedy which he now has by the law of the land." The only way to bring about harmony is to hold that, under this section, suit may be brought in all cases in the name of the administrator, and that, when this is done, the rights of the father, mother, widow and children and creditors are all merged in the administrator. An administrator may join a claim due to him individually with a count for one due to him as administrator. This was done in Railroad Co. v. Cook, 63 Miss. 38. This is the effect of the case at bar, where the widow, having the right to sue on both claims, combines them, and alleges that she and her child are the only heirs, and that there are no debts of the estate. See, also, McMaster v. Railroad Co., 65 Miss. 264; Railroad Co. v. Barber, 44 Am. & Eng. Ry. Cas., 523; Railroad Co. v. Crudup, 63 Miss. 299; Rucks v. Taylor, 49 Miss. 560; Lea v. Hopkins, 7 Pa. 385; Stafford v. Gold, 9 Pick. (Mass.), 532.

2. The fact of instantaneous death is not a defense, under the constitution, in any case. The purpose of §§ 2078, 2079, code 1880, is said, in Railroad Co. v Pendergrass, 69 Miss. 425, to have been simply to preserve pending suits or existing rights that the deceased had in his lifetime. But such is not the scope and object of § 193 of the constitution. It does not deal with estates or the administration of estates. Its purpose was to fix definitely the limits within which corporations should be liable for injury to their employees, and then, incidentally, to designate a person in whom the right to sue shall be vested when death ensues, and, also in its caution, to preserve existing rights and remedies. The right of the administrator does not depend upon whether or not death is instantaneous, but whether or not it ensues from the injury. Short v. Railroad...