Richmond. F. & P. R. Co v. Martin's Adm'r

• Decision Date: 09 December 1903
• Citation: Richmond. F. & P. R. Co v. Martin's Adm'r, 45 S.E. 894, 102 Va. 201 (1903)
• Court: Virginia Supreme Court
• Parties: RICHMOND. F. & P. R. CO. v. MARTIN'S ADM'R.

45 S.E. 894

102 Va. 201

RICHMOND. F. & P. R. CO.

v.MARTIN'S ADM'R.

Supreme Court of Appeals of Virginia.

Dec. 9, 1903.

ACTION FOR DEATH OF CHILD—CONTRIBUTORY NEGLIGENCE.

1. Where a father, through his agent, the custodian of child, is guilty of negligence contributing to cause its death, he cannot recover damages for its death in an action for his own benefit, under Code 1887, §§ 2903, 2905.

v 1. See Parent and Child, vol. 37, Cent. Dig. § 94.

Error to Circuit Court, Stafford County.

Action by Patrick Martin, administrator of Alice Martin, deceased, against the Richmond, Fredericksburg & Potomac Railroad Company. Prom a judgment in favor of plaintiff!, defendant brings error. Reversed.

St George Fitzhugh and Leake & Carter, for plaintiff in error.

Wm. D. Carter and A. T. Embrey, for defendant in error.

WHITTLE, J. This action was brought by the defendant in error, Patrick Martin, administrator of Alice Martin, deceased, against the plaintiff in error, the Richmond, Fredericksburg & Potomac Railroad Company, to recover damages for the negligent killing of his intestate, a daughter seven years of age, by a passenger train of the defendant company at a public crossing. The mother of the child was killed in the same collision, and the action was instituted for the sole benefit of the father, who, under the statute, is entitled to the recovery. At the trial there was a verdict for the plaintiff, upon which the judgment under review was rendered.

The defendant adduced evidence tending to prove that Patrick Martin, Jr., a minor 11 years old, and a son of the plaintiff, was put in charge of a two-horse Dayton wagon, as driver, by his father, in which his mother and two younger sisters and a negro boy were to be driven from their home in the country to the city of Fredericksburg; that Patrick Martin, Jr., negligently drove upon and attempted to cross the railway track at Falmouth crossing, in plain view of a rapidly approaching train; and that in the collision which followed his mother and two sisters, who occupied a rear seat in the vehicle, were instantly killed. Thereupon the defendant moved the court to instruct the jury that if they believed from the evidence that Patrick Martin, Jr., the son and servant of the plaintiff, attempted to cross the track under the circumstances detailed, his conduct constituted such contributory negligence as to bar a recovery. The court refused to give the instruction, which ruling presents for decision the sole question in the case, namely, whether a father, whose negligence has contributed to the death of his minor child, can, under the statute, in an action instituted by him as administrator, suing for his own benefit recover damages for the death of the child. The statute requires such actions to be brought by and in the name of the personal representative of the deceased person, and empowers the jury to award such damages as to it may seem fair and just, not exceeding $10,000.

The primary object of the statute in allowing an action to recover damages for death by wrongful act of another, like its prototype, Lord Campbell's act, was to compensate the family of the deceased, and was not in the interest of the general estate; the provision being that: "The amount recovered in any such action shall after the payment of costs and reasonable attorneys' fees, be paid to the wife, husband, parent and child of the deceased, in such proportion as the jury may have directed, or, if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but, if there be no wife, husband, parent, or child, the amount so received shall be assets in the hands of the personal representative, to be disposed of according to law." Code 1887, §§ 2903, 2905.

It will be observed that by the express language of the statute the damages awarded cannot become assets in the hands of the administrator, to be disposed of according to law, if the decedent is survived by a wife, husband, parent, or child; and the recovery is also made free from all debts of the decedent, thus leaving no doubt of the legislative intent to treat the recovery as wholly independent of the decedent and his estate in the event of the survival of any one of the enumerated kin, and making it 'inure directly and personally to such next of kin by force of the statute, and not derivatively from the decedent, to whom it never belonged either in fact or in contemplation of law.

The authorities all agree that there can be no recovery where the action is brought in the name and for the benefit of one whose negligence has contributed to the accident. Thus, if the child in this instance had been injured, instead of killed, and the father had brought a common-law action to recover damages for the injury, contributory negligence on his part, if established, would have constituted a bar to the action. But the contributory negligence of the father would Interpose no defense to an action by the child for such injury. The rule is that the child's want of responsibility for negligence can no more be invoked to maintain the action of the negligent father than can the negligence of the latter be imputed to the child to defeat an action by him.

In this case both parties, at the time of the accident, were represented by agents—the defendant company by its employes, and the plaintiff by his son, to whose care he had confided the custody of the younger sister—and both were responsible for the acts and omissions of their respective agents. Glas-sey v. Ry. Co., 57 Pa. 172.

In Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670, the court said: "Where an infant intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence which contributed to the result, although the infant may maintain an action for such injury, the father cannot; the negligence of his agent, the custodian of the child, being in law the negligence of the father."

"When an action for negligent injury of an infant is brought by the parent, or for the parent's own benefit, it is very justly held that the contributory negligence of such parent may be shown in bar of the action, the negligence of his agent to whom he had intrusted the child having contributed to cause the injury; and such negligence, being, in contemplation of law, the parent's negligence, was held to bar the action." Beach on Con. Neg. § 131.

The doctrine of imputed negligence has no application to the case, but the rule that the negligent father cannot recover is founded upon the fundamental principle that no one can acquire a right of action by his own negligence. The principle involves a maxim of the law as old as the common law itself. The difference between an action by the father for injuries to the child where death does not ensue and an action by the father as administrator of his dead child, brought under the statute for his own benefit, is a difference in form merely, not in substance, and on principle there can be no more reason for permitting a recovery in the latter case than in the former. In both the father is the substantial plaintiff and the sole beneficiary. To allow a recovery in either would be a violation of the policy of...