Missouri, K. & T. Ry. Co. v. Foreman

• Decision Date: 05 November 1909
• Docket Number: 2,904.
• Citation: 174 F. 377
• Parties: MISSOURI, K. & T. RY. CO. v. FOREMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F. 377

MISSOURI, K. & T. RY. CO. v. FOREMAN et al.

No. 2,904.

United States Court of Appeals, Eighth Circuit.

November 5, 1909

Clifford L. Jackson, for plaintiff in error.

D. H Wilson and A. A. Osgood, for defendants in error.

Before VAN DEVANTER, Circuit Judge, and CARLAND and POLLOCK District judges.

POLLOCK District Judge.

This action was brought to recover damages for a death alleged to have occurred by reason of the negligent, wrongful acts of the railway company. The facts are:

Deceased was a freight conductor in the employ of defendant, engaged in running a freight train south on defendant's line of road from Parsons, Kan., to Muskogee, Okl. On the 5th day of August, 1903, when the train, composed of 12 to 15 ballast cars, had passed Russell Creek station, and when about seven telegraph poles north of milepost No. 419 on defendant's line of road, the drawhead in the car next to the engine pulled out. At this time the crew in charge of the train consisted of deceased, as conductor, Miller, as engineer Searcy, fireman, Wyman, head, and Denham, rear brakemen. Passenger train No. 4 was about due at this place, as was a freight train against which this train had a time order which facts rendered it necessary for the crew in charge of the train to act quickly and promptly in moving the train. When the drawhead pulled out, the engineer applied the brakes, stopped the engine, threw the reverse lever in the center of the quadrant as nearly as possible, got down from the engine, leaving it standing some eight or ten feet in front of the car from which the drawhead had been pulled out, and leaving the fireman in the cab on the engine. After ascertaining in what the trouble consisted, the engineer went back to the engine, procured a chain with which to fasten the train to the engine in place of the broken drawhead.

As deceased, engineer Miller, and front brakeman Wyman, were working between the rails chaining the car and engine together, the deceased being at the time on his knees assisting in passing the chain around the front axle of the car, from some cause the engine backed up, catching the deceased between the drawbar of the engine and the deadwood timbers of the car, from the effect of which his head was crushed, resulting in immediate death.

To recover damages for loss so sustained, this action was brought by the widow and next of kin, and the mother of deceased, jointly, against the railway company. The specific grounds of negligence charged in the petition are these:

'That the backing of said engine was the result of its being out of repair and in an unsafe and dangerous condition, in this, that the air brake and appliances controlling the same were out of order and leaky so that after being set the air brake would leak off and allow said engine to start and move; and in this, that the throttle of said engine was out of order and leaked steam to such an extent as to cause the engine to move after the steam valve had been closed so far as it could be closed in the condition it then was in, by reason whereof said engine No. 490 was, and for several days before that had been, unsafe and dangerous to use in and about the handling and operating of a train of cars-- all to the knowledge of said defendant.'

While many errors are assigned and discussed, in the view we have taken of the case, we deem it necessary to notice but two: (1) The action of the trial court in denying the request made by defendant for an instructed verdict in favor of defendant and against the mother, Mary E. Foreman; (2) the refusal of the trial court to direct the jury, on the entire case, to return a verdict in favor of the defendant. And of these in their order. Was the mother of deceased a proper or necessary party plaintiff to this action?

It being the insistence of plaintiff in error in this regard, as deceased was contributing nothing toward the support of his mother at the date of his death, and had contributed nothing for 15 years last past, she had no reasonable prospect of receiving any aid or support from deceased in the future, therefore she suffered no pecuniary loss by reason of his death, and no recovery can be had in her behalf and the reason to so charge the jury should have been sustained.

The solution of this question depends upon a consideration of the act creating the cause of action. That act is section 5226, Mansf. Dig. Laws Ark. 1884 (Ind. T. Ann. St. 1899, Sec. 3431), extended over the Indian country by Act Cong. May 2, 1890, c. 182, 26 Stat. 81, and reads as follows:

'Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, that every such action shall be commenced within two years after the death of such person.' At the common law no right of action accrued to any one for an injury resulting in death. It was therefore the province of the legislative branch of the government, state or national, to create such right of action, to confer it on such persons, to limit the recovery to such amount, and to distribute it to such persons under such limitations as in its wisdom seemed proper. The right of action created by this statute is conferred first on the personal representatives of the deceased. If, as in this case, there were no personal representatives in existence, then the right of action may be exercised 'by the heirs at law of such deceased person for the exclusive benefit of the widow and next of kin. ' There is in this statute no thought of punishment of the wrongdoer, and the recovery is limited to a just compensation for loss sustained by those for whose benefit the action is brought, and is to be distributed to the widow and next of kin in the same proportion and the same manner as the law distributes personal property left by the deceased. Therefore, in order to ascertain on whom the law casts the right of action so created, we have only to determine who the heirs at law of the deceased were at the date of his death, and, in order to determine the amount of recovery, to ascertain what the pecuniary loss to the widow and next of kin was by reason of the death. For, if no such loss was sustained by those to whom the law would distribute the recovery when had, it is clear, in such case, there could be no recovery. Swift & Co. v. Johnson, 138 F. 867, 71 C.C.A. 619 1 L.R.A. (N.S.) 1161; Little Rock & Ft. Smith Ry. v. Townsend, 41 Ark. 382; Fordyce v. McCants, 51 Ark. 509, 11 S.W. 694, 4 L.R.A. 296, 14 Am.St.Rep. 69; St. Louis, M. & S.E. Ry. Co. v. Garner, 76 Ark. 555, 89 S.W. 550; Atchison, etc., Co. v. Brown, 26 Kan. 443.

Section 2592, Mansf. Dig. Laws Ark. 1884 (Ind. T. Ann. St. 1899, Sec. 1880), in force in the Indian country when this death occurred, provides as follows:

'If a husband die leaving a widow and no children, such widow shall be endowed of one-half of the real estate of which said husband died seised, and one-half of the personal estate, absolutely and in her own right.'

Section 2522 of the same laws (Ind. T. Ann. St. 1899, Sec. 1820), in force, reads as follows:

'When any person shall die having title to any real estate of inheritance or personal estate not disposed of nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following manner: First, to children or their descendants in equal parts. Second, if there be no children, then to the father, then to the mother; if there be no mother, then to the brothers and sisters or their descendants in equal parts.'

From which it becomes apparent in this instance both the widow and the mother of the deceased, who died without children or father living, were his heirs at law; and as the right of action here created, in the absence of personal representatives, is cast upon the heirs at law of the deceased, no others can exercise such right. The right of action so created must be exercised by those on whom it is conferred, the heirs at law; the amount recovered to be distributed when recovered to those for whose benefit the cause of action was created, the widow and next of kin.

As the mother is one of the heirs at law of deceased, and as the heirs at law alone, in the absence of personal representatives, may exercise the right to prosecute this action, the mother is a necessary party plaintiff notwithstanding she may in her individual capacity have suffered no pecuniary loss by reason of the death of her son, and may in her individual capacity receive no part of any recovery that may be had. She acts here in the capacity of plaintiff in the exercise of this right created by statute, not in her individual capacity as mother of deceased,...