De Soto Motor Corporation v. Stewart

• Citation: 62 F.2d 914
• Decision Date: 08 February 1933
• Docket Number: 687.,No. 686,686
• Parties: DE SOTO MOTOR CORPORATION v. STEWART. SAME v. EPPERSON.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

62 F.2d 914 (1932)

DE SOTO MOTOR CORPORATION v. STEWART.

SAME v. EPPERSON.

Nos. 686, 687.

Circuit Court of Appeals, Tenth Circuit.

December 6, 1932.

Rehearing Denied February 8, 1933.

George S. Downer, of Albuquerque, N. M. (J. O. Seth, of Santa Fé, N. M., on the brief), for appellant.

Francis E. Wood, of Albuquerque, N. M. (O. N. Marron and Owen B. Marron, both of Albuquerque, N. M., on the brief), for appellees.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

Judgments were rendered, after verdicts of a jury, against appellant for damages arising from the death of Mr. Stewart and Mr. Epperson. They were killed when an automobile in which they were riding, alleged to have been driven by one Briggs, failed to negotiate a curve at high speed. Briggs was a traveling representative of appellant; his general duties were to promote its business in New Mexico, and he was particularly charged with the duty of selling the demonstrating car in his custody. Briggs was endeavoring to interest Epperson in its purchase. On the night of the accident, Briggs was required to go from Gallup to Albuquerque on company business. He invited Mr. Epperson to go; Epperson in turn suggested that Mr. Stewart, a friend of Epperson's, was going to Albuquerque that night on business of his own, and might go with them. Briggs then invited Stewart. A Mrs. Vann completed the party on the ill-fated trip, made in the company car. The theory upon which the judgments are founded is that Briggs was on company business in demonstrating the car to Epperson; and that Stewart was a part of the public whose good will appellant was desirous of gaining.

Appellant contends that the New Mexico death statute violates the equal protection clause of the Federal Constitution (Amend. 14), a corresponding section of the State Constitution (art. 2, § 18) and also section 26, art. 4, of the New Mexico Constitution, which prohibits the granting of special privilege to corporations. The pertinent sections of the New Mexico death statute, sections 36-102 and 36-104, Comp. St. 1929, are set out in full in Mallory v. Pioneer Southwestern Stages (C. C. A. 10) 54 F.(2d) 559. Ever since the enactment of the original statute in 1882 (Laws N. M. 1882, c. 61), distinctions have been made in the statute between deaths occasioned by the negligence of common carriers, and deaths occasioned by the negligence of others. One of the distinctions is as to the amount of recovery. In the original statute, recovery against common carriers for wrongful death was fixed at $5,000 irrespective of the actual loss; against others, recovery was limited to the actual damage, not to exceed $5,000. In 1891 (Laws N. M. 1891, c. 49), the $5,000 limit was removed as to the latter class. Since 1891, therefore, recovery may be had against others than common carriers for the full amount of the damage occasioned by the wrongful death; while $5,000 now $7,500 (Laws 1931, c. 19), no more and no less, is recoverable where death is occasioned by a common carrier (Comp. St. N. M. 1929, § 36-101). The judgments in these cases exceed $5,000. The claim is that such statute denies to appellant, not a common carrier, the equal protection of the laws.

This statute has stood without challenge for more than 40 years. It was copied from a Missouri statute passed in 1855. The presumption of constitutionality that is accorded all legislative enactments is greatly strengthened by public acquiescence over a long period of time. Commonwealth v. Kneeland, 20 Pick. (Mass.) 217; Stumpf v. Storz, 156 Mich. 228, 120 N. W. 618, 23 L. R. A. (N. S.) 152, 132 Am. St. Rep. 521; George Gregory Printing Co. v. De Voney, 257 Ill. 399, 100 N. E. 1066; Udell v. Citizens' St. R. Co., 152 Ind. 507, 52 N. E. 799, 802, 71 Am. St. Rep. 336; Beasley v. Ridout, 94 Md. 641, 52 A. 61; State v. Omaechevviaria, 27 Idaho, 797, 152 P. 280; Home Telephone Co. v. People's T. & T. Co., 125 Tenn. 270, 141 S. W. 845, 43 L. R. A. (N. S.) 550; State ex rel. Proctor v. Bay City, 65 Or. 124, 131 P. 1038; Gilmore v. Penobscot County, 107 Me. 345, 78 A. 454. The case must be a clear one that would justify a court in striking down a statute which has regulated the affairs of the citizens of a state for more than 40 years. No such case is presented.

The guaranty of the equal protection of the laws does not deny to a Legislature the right to classify along reasonable lines. From the earliest times, it has been recognized that the relations of a common carrier to the public, or to its employees, are properly the subject of special legislation. As early as 1786, Massachusetts imposed a fine upon the keeper of a bridge whose negligence resulted in the death of a traveler; this statute was amended in 1840 to include carriers of passengers. See Carey v. Berkshire R. Co., 1 Cush. (Mass.) 475, 48 Am. Dec. 616. Probably every state in the Union has legislation dealing with the negligence of carriers. As late as November 7, 1932, the Supreme Court of the United States sustained a statute creating a presumption of liability where damage is caused by a common carrier, against the attack of a denial of equal protection of the laws. The court said:

"In view of numerous decisions of this court sustaining legislative classifications for various purposes and declaring the principles upon which their constitutional validity depends, it does not require any discussion to show that the mere discrimination resulting from the application of the presumption created by section 7051 to appellant and other railroad companies and the failure of the state to prescribe the same or a like rule in similar actions against carriers by motor for hire or other litigants does not violate the equal protection clause of the Fourteenth Amendment. Appellant's contention to the contrary is without substance." Seaboard Air Line Railway Co. v. Watson, 53 S. Ct. 32, 34, 77 L. Ed. ___.

Given, then, the power to put the negligence of carriers into a separate category, it is still insisted that there is neither rhyme nor reason in placing a limit on the amount of recovery against them, and no such limit where another causes the death. The power to classify carries with it the power to establish different sets of rules applicable to the different classes; and it is not fatal that the particular rules within the set may result in some inequality when applied to specific instances. In Second Employers' Liability Case, 223 U. S. 1, 53, 32 S. Ct. 169, 176, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, a statute was challenged which imposed an employer's liability upon interstate carriers by railroad, and not upon other interstate carriers. The statute was upheld, the court saying that the equal protection guaranty "does not take from Congress the power to classify, nor does it condemn exertions of that power merely because they occasion some inequalities. On the contrary, it admits of the exercise of a wide discretion, in classifying according to general, rather than minute, distinctions, and condemns what is done only when it is without any reasonable basis, and therefore is purely arbitrary."

To the same effect, see Louisville & Nashville R. Co. v. Melton, 218 U. S. 36, 30 S. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463; Chicago, B. & Quincy R. Co. v. McGuire, 219 U. S. 549, 31 S. Ct. 259, 55 L. Ed. 328.

There being no question as to the power of the Legislature to make the general classification, it is not necessary to seek a reason to support the particular clause of the statute under attack. Reasons therefor, however, immediately suggest themselves. The Legislature may well have considered that since a recovery of $5,000 was allowed, although though the damage was nominal, it was only fair that the recovery be limited to $5,000 in event the damages exceeded that sum; that the quasi penal allowance made to insure carefulness should be offset by a reasonable maximum. Or, the Legislature may have fixed a maximum because of the danger of juries returning damages in fanciful amounts against carriers, a danger not con-considered to be present in actions against others. Or, the Legislature may have concluded that the tariffs, which the public must pay, might be seriously affected by extravagant verdicts against railroad companies. Other considerations suggest themselves, among them the quære as to the power of the Legislature to allow the common law to stand unmodified as to carriers, while adopting Lord Campbell's Act as to others; but these are enough. The statute limits the recovery against the plaintiff to such damages as are fair and just; its constitutional rights are not violated because another section of the statute, dealing with another class, provides that a fixed sum shall be paid in case of negligent death. The demurrer to the amended petition was properly overruled.

Error is also assigned on account of the admission in evidence of answers elicited from the witness Briggs on cross-examination. The circumstances are unusual. Appellant started to take the deposition of J. P. Briggs, alleged by the appellees to have been driving the car when the accident occurred, at Denver, Colorado. Briggs stated his name and address, that he was a defendant in the action but had not been served with summons, and that he knew Sue Vann. When asked if he remembered the accident, he fell into an uncontrollable rage. Thereupon counsel for appellant announced that he declined to use him as a witness, but stated that counsel for appellees could make him his own witness if he so desired. The further taking of the deposition was adjourned until afternoon. Counsel for appellees took over the witness, who in response to some mollifying questions, stated that he would answer questions propounded to him under certain conditions. Counsel for appellees...