Romero v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 26 February 1903
• Parties: ROMERO v. ATCHISON, T. & S. F. RY. CO.
• Court: New Mexico Supreme Court

72 P. 37

11 N.M. 679, 1903 -NMSC- 008

ROMERO v. ATCHISON, T. & S. F. RY. CO.

Supreme Court of New Mexico

February 26, 1903

Syllabus by the Court.

1. Where a statute gives the cause of action, and designates the persons who may sue, they alone are authorized to bring suit.

2. For causes of action arising under section 3213, Comp. Laws 1897 legal representatives are not authorized to bring or maintain suit. Sections 3213, 3214, and 3215, construed.

Appeal from District Court, San Miguel County; before Justice Mills.

Action by Margarito Romero, administrator of Juan Leyba, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The appellant, as administrator of the estate of Juan Leyba deceased, brought suit in the district court for San Miguel county, N. M., to recover damages in the sum of $5,000 for the death of Leyba, who was accidentally killed in the yards of the appellee at Las Vegas, N. M., June 21, 1902; having been run over by a freight car. The deceased was not in the employ of the appellee. He was engaged in transferring some machinery from a car standing in the yards of appellee into a wagon. While so engaged, and while standing on the car, some other cars were pushed against the car on which deceased was standing, throwing him off, and he was run over and killed by the car pushed against the loaded car; and the deceased died from an injury sustained and occasioned through the alleged negligent running and operation of a locomotive and train of cars by the agents, servants, and employés of the appellee. The appellee interposed a demurrer to the complaint, and, as ground of demurrer, alleged that an administrator had no legal capacity to sue, under the facts as stated in the complaint. The demurrer was sustained, and, appellant standing upon his demurrer, judgment was rendered for the appellee.

Eusebio Chacon, for appellant.

H. L Waldo and R. E. Twitchell, for appellee.

McFIE J. (after stating the facts).

The sole question presented by this record is whether, under the facts disclosed by the complaint, a right of action existed in the name of the administrator of the estate of the deceased. It will be admitted that at common law no action would lie for an injury caused by the death of a human being. If a right of action now exists, therefore, it must be by virtue of legislative enactment. The subject of death by wrongful act has been brought to the attention of the legislative department of this territory on at least three different occasions, and statutes have been enacted, which in determining this case, it becomes our duty to examine, as a right of action, if any exists, must be found in these enactments.

This subject was first considered by the Legislature at its session in 1882 (Laws 1882, p. 104, c. 61), and a law was enacted as follows:

"Section 1. Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from any injury resulting from, or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance, at the time any injury is received, resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued and recovered, first, by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, 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. In suits instituted under this section it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section, was not a negligent defect or insufficiency.

"Sec. 2. Whenever the death of the person shall be caused by a wrongful act, neglect, or default of another, and the act or neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

"Sec. 3. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section one of this act, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue, and also having regard for the mitigating or aggravating circumstances attending such wrongful act, neglect or default."

It is contended by appellee that section 1 of the Laws of 1882, now section 3213 of the Compiled Laws of 1897, governs this case if, under the circumstances of the killing, as alleged in the complaint, a right of action exists at all; and this contention is well founded, and must be sustained. In our opinion, there was an evident intention on the part of the Legislature of 1882 to make a distinction between the common carrier and other corporations and persons causing death by wrongful act, in regard to liability. It will be observed that section 1 of the Laws of 1882 is distinctly limited to deaths caused by the wrongful act of common carriers, and their agents, servants, and employés, while engaged in running and handling locomotives, trains, stage coaches, or other public conveyances, whereas sections 2 and 3 of the same act are general in terms, and evidently intended to refer to deaths caused by the wrongful act of persons and corporations other than common carriers, as embraced in section 1. As a further evidence of this distinction, it is provided that, in case of death by wrongful act of the common carrier, the party liable "shall forfeit and pay to the person or passenger so dying, five thousand dollars"; but, under sections 2 and 3 of the original act, any sum not exceeding $5,000 was recoverable. Under the first section the amount of the recovery was arbitrarily fixed by statute, but under the other sections the damages were to be fixed by a jury, which was authorized to take into consideration the "mitigating or aggravating circumstances." It would seem strange indeed that the Legislature should in one section of an act provide that a person or passenger killed by the wrongful act of the common carrier should recover the full sum of $5,000, and in the second and third sections of the same act provide for damages in any sum such as a jury might assess, not exceeding $5,000, if both sections were intended to...