Seaboard Air Line Ry. Co. v. Oliver

• Decision Date: 31 October 1919
• Docket Number: 3321.
• Citation: 261 F. 1
• Parties: SEABOARD AIR LINE RY. CO. v. OLIVER.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F. 1

SEABOARD AIR LINE RY. CO. v. OLIVER.

No. 3321.

United States Court of Appeals, Fifth Circuit.

October 31, 1919

Thomas F. Walsh, Jr., of Savannah, Ga., for plaintiff in error.

Francis M. Oliver, of Savannah, Ga., for defendant in error.

Before WALKER, Circuit Judge, and FOSTER and GRUBB, District Judges.

WALKER Circuit Judge.

This was an action under the federal Employers' Liability Act by the personal representative of Bud Hall, deceased. The right of the plaintiff (defendant in error here) to maintain the action was resisted on the ground that Bud Hall brought suit against the plaintiff in error for the damages sustained by him in consequence of the injury to which his death was attributed in the pending suit, and recovered judgment, which judgment has been satisfied by payment thereof. The court ruled against that defense.

So far as we are advised, the question whether the statute mentioned gives a deceased employe's personal representative the right to maintain an action when the employe himself has recovered for the injury he suffered has not heretofore been ruled on. It is not open to question that the statute provides for two distinct rights of action: One in the injured person for his personal loss and suffering, where the injuries are not immediately fatal; and the other in his personal representative for the pecuniary loss sustained by designated relatives, where the injuries immediately or ultimately result in death, the damages recoverable in the one case not being the same as those recoverable in the other. Michigan Central R.R. v. Vreeland, 227 U.S 59, 33 Sup.Ct. 192, 57 L.Ed. 417, Ann. Gas. 1914C, 176; St. Louis & Iron Mountain Ry. v. Croft, 237 U.S 648, 35 Sup.Ct. 704, 59 L.Ed. 1160.

Until the act of 1908 (35 Stat. 65, c. 149), was amended by the act of April 5, 1910 (36 Stat. 291, c. 143), the right of action given to the injured person was extinguished by his death. The act of 1908, with qualifications which need not now be mentioned, made a common carrier by railroad, while engaging in interstate commerce, 'liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of' designated relatives. The following is the section added by the amendment of 1910:

'Any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe, and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, but in such cases there shall be only one recovery for the same injury.'

The amendment does no more than provide for the survival of the employe's right of action if it remained in existence up to the time of his death, and that 'in such cases'-- that is, cases of survival of the employe's right of action-- there shall be only one recovery for the same injury. If the employe had no right of action immediately before he died, his personal representative has no right of action other than such as was given by the act before it was amended. The section added by the amendment of 1910 is not applicable to such a case.

The first section of the act makes the carrier liable in damages to the injured employe, 'or, in case of the death of such employe, to his or her personal representative, for the benefit,' etc. The two distinct rights of action are given in the alternative or disjunctively. The language used indicates the absence of an intention to allow recoveries for the same wrong by both the injured employe and, in case of his death, by his personal representative; only one recovery being allowed when the injured employe dies without having enforced the right of action given to him. It seems to be a fair inference from that language that the right of action given to the injured employe's personal representative was intended to be unenforceable after the enforcement and satisfaction of the one given to the employe himself. From the fact that one wrong gives rise to two or more rights of action, it does not follow that there can be more than one recovery based on that wrong. An intention to permit more than one recovery for an injury to an employe for which a statute gives a right of action to the employe, or, in case of his death, to his personal representative, is not to be inferred, in the absence of language evidencing such intention, where the wrong upon which the rights of action given are based is a tort, the inception and continued existence of which is dependent upon conduct of the employe at the time of, or subsequent to, the injury.

In this connection what was said in the opinion in the case of Western Union Telegraph Co. v. Preston, 254 F. 229 ...