Missouri, K. & T. Ry. Co. v. Lenahan
| Decision Date | 23 September 1913 |
| Parties | MISSOURI, K. & T. RY. CO. v. LENAHAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The state law, in so far as it may cover the same field, was superseded by the enactment by Congress of the employers' liability act of April 22, 1908 (35 Stat. 65, c. 149 [U. S Comp. St. Supp. 1909, p. 1171]), regulating the liability of interstate railway carriers for the death or injury of their employés while engaged in interstate commerce.
The enforcement of rights under the employers' liability act of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1909, p. 1171]), regulating the liability of interstate railway carriers for death or injury of their employés while engaged in interstate commerce, cannot be regarded as impliedly restricted to the federal courts, in view of the concurrent jurisdiction provision of the judiciary act of August 13, 1888 (25 Stat. 433, c. 866 [U. S. Comp. St. 1901 p. 508]), to the original employers' liability act which, instead of granting jurisdiction to the state courts presupposes that they already possess it.
The widow of a deceased railway employé cannot bring in her own name the action for damages, given by the employers' liability act of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1909, p. 1171]), "to his or her personal representatives, for the benefit of the surviving widow or husband and children of such employé." The right of action, in case of death of the employé, is given to the personal representative, and not to the surviving widow, and such representative alone can sue.
Since the right of action for injuries resulting in death is based entirely upon statute, no such right existing at common law, the action can be brought only in the name of the person to whom the right is given by the statute.
In an action, brought by the surviving wife against a common carrier by railroad, to recover damages for the wrongful death of her husband, recoverable, if at all, under authority of the employers' liability act of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1909, p. 1171]), it appears from the amended answer that the carrier and the deceased were, at the time of the injury, engaged in interstate commerce, and which allegation of the answer is not put in issue, though a reply was filed, and where defendant company files a motion for judgment on the pleadings, objects to the introduction of any evidence, demurs to the evidence introduced at the close of plaintiff's case, and after all the evidence is in, moves for a peremptory instruction in its favor, it cannot be said that said defendant has waived its right to insist, on appeal, that the action could not be brought by such wife suing in her own right.
Want of legal capacity to sue refers to a general legal disability. If such disability does not exist, the failure of a plaintiff to show a right of action in herself goes to the sufficiency of the pleading to state a cause of action, and is not waived by failure to demur, or answer, pleading want of capacity.
Where the plaintiff is a natural person, under no legal disability to maintain actions, a failure to state a cause of action in her own favor goes to the sufficiency, in substance, of the petition, and not to her legal capacity to sue.
Where an action is brought by the surviving wife, instead of by the personal representative of a deceased railway employé, to recover damages, recoverable, if at all, under the authority of the employers' liability act of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1909, p. 1171]), and where, after submission in the Supreme Court, an application is made in this court on behalf of said wife (who claims to have been appointed administratrix of her husband's estate by the court of another state, subsequent to the trial below) to be made a party in her alleged representative capacity, and where, in opposition thereto, plaintiff in error put in issue by sworn denial both the plaintiff's right to and appointment as administratrix, and there being no one before the court having a right of action, this court cannot hear and determine the question of fact presented, or further consider the application, but will remand the case, without prejudice to such rights as the alleged personal representative may have.
Commissioners' Opinion, Division No. 1. Error from District Court, Craig County; John J. Shea, Judge.
Action by Etta Lenahan against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.
Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee, for plaintiff in error.
W. H. Kornegay and E. H. Brady, both of Vinita, for defendant in error.
Defendant in error, hereinafter referred to as plaintiff, the surviving widow of James Lenahan, deceased, brought an action for damages against plaintiff in error, hereinafter known as defendant, on account of the alleged negligent killing of her said husband by defendant railway company. The petition charged that James Lenahan, deceased, and plaintiff bore to each other the relation of husband and wife; that they had no children; that plaintiff was a resident of the state of Kansas; and that the death of the said James Lenahan occurred on May 15, 1908, in Muskogee county, Okl., as a result of injuries inflicted upon him by reason of the negligence of defendant, its servants and employés. Damages were asked in the sum of $30,000. Defendant filed its answer, consisting, first, of a general denial, and, second, charged that the death of the deceased was occasioned by his own negligent acts. Thereafter an amended answer was filed, containing allegations similar to that in the original answer, and in addition further charged that the trains which collided, operated by defendant company, were at the time engaged in the movement of interstate commerce. A second amended answer was afterwards filed, in which were contained the same allegations, in substance, as set forth in the original answer, with the further plea that said defendant company was then, and had been at all times mentioned in plaintiff's petition, a common carrier by railroad, engaged in commerce between the several states, and that the passenger train, described by plaintiff in her petition as the Katy Flyer, was at all times mentioned therein an interstate train, starting from St. Louis, Mo., and passing into and through the states of Kansas and Oklahoma, thence into the state of Texas, and at all times therein mentioned was engaged in the movement of interstate commerce; that the freight train described in plaintiff's complaint was, on the 15th day of May, 1908, a train starting from Muskogee in the state of Oklahoma and proceeding on its way, over the defendant's line of railway, to Parsons, in the state of Kansas, and was on said date, and at all times mentioned in plaintiff's petition, engaged in moving interstate commerce, and that said James Lenahan, deceased, was the engineer in charge of the engine drawing said freight train. Plaintiff's reply denied that the deceased was guilty of negligence, or in any way contributed to the injury complained of, and charged that the Katy Flyer and the freight train, of which the deceased was in charge as an engineer, were, at the time of the collision, in the county of Muskogee, state of Oklahoma, and in all respects subject to the laws of the state, and at the time of the accident the deceased was acting by virtue of orders from the conductor of the freight train. Defendant filed its motion for judgment on the pleadings, no particular reason therefor being stated. This motion was overruled. The case being called for trial, defendant objected to the introduction of any evidence, for the reason that the allegations of the petition were not sufficient to constitute a cause of action in favor of plaintiff. This motion was also overruled. At the close of plaintiff's testimony, defendant demurred thereto, which demurrer was overruled. After all the testimony had been introduced, defendant requested the court to peremptorily instruct the jury to return a verdict in its behalf, which request was refused. To the action of the court in overruling said motion, objection, demurrer, and request for peremptory instruction, the defendant excepted, as it further did to the giving of the court's charge. The trial resulted in a verdict for the plaintiff. Motion for a new trial being overruled, the case is brought here for review.
The first question necessary for determination is that of the right of the plaintiff, in her own right, to sue. She and her husband, James Lenahan, resided prior to his death at Parsons, Kan. Hence, under sections 5945 and 5946, Comp. Laws 1909, if at the time in force and controlling, the action was one that could properly be brought by the plaintiff in her individual capacity. The question is therefore presented: May an action longer be brought or maintained, under the authority of a state statute, where the facts are such as disclosed by the record before us, and this by reason of the passage by Congress of the act of April 22, 1908 (35 Stat. at L. 65, c. 149 [U. S. Comp. St. Supp. 1911 p. 1322]), and known generally as the "Employers' Liability Act"? This act was in force at the time of the death of the said James Lenahan, and, it being charged in the amended answer, and shown by the evidence, that at the time of the injury, the defendant was engaged in commerce between the states, what law must govern, the state or federal? The provisions in the federal Constitution (article 1, § 8, clauses 3 and 18) confer upon Congress the power "to regulate commerce * * * among the several...
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