Tilly v. Flippin

• Citation: 237 F.2d 364
• Decision Date: 12 September 1956
• Docket Number: No. 5301,5302.,5301
• Parties: Virginia L. TILLY, Administratrix of the Estate of A. L. Tilly, Deceased, Appellant, v. Joe FLIPPIN and Ferguson Steere Motor Company, a corporation, Appellees. Mary Ellen CARPENTER, Administratrix of the Estate of Arthur D. Carpenter, Jr., Deceased; Mary Ellen Carpenter, Administratrix of the Estate of James Arthur Carpenter, Deceased, Appellants, v. Joe FLIPPIN and Ferguson Steere Motor Company, a corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

237 F.2d 364 (1956)

Virginia L. TILLY, Administratrix of the Estate of A. L. Tilly, Deceased, Appellant, v. Joe FLIPPIN and Ferguson Steere Motor Company, a corporation, Appellees.

Mary Ellen CARPENTER, Administratrix of the Estate of Arthur D. Carpenter, Jr., Deceased; Mary Ellen Carpenter, Administratrix of the Estate of James Arthur Carpenter, Deceased, Appellants, v. Joe FLIPPIN and Ferguson Steere Motor Company, a corporation, Appellees.

Nos. 5301, 5302.

United States Court of Appeals Tenth Circuit.

September 12, 1956.

Caswell S. Neal, Carlsbad, N. M. (Stagner & Sage and Neal, Neumann & Neal, Carlsbad, N. M., were with him on the brief), for appellants.

Roy F. Miller, Jr., Albuquerque, N. M. (Merritt W. Oldaker, Albuquerque, N. M., was with him on the brief), for appellees.

Before HUXMAN, MURRAH, and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

On August 21, 1954, the defendant Joe Flippin, in the course of his employment with the defendant Ferguson Steere Motor Company, a corporation, was operating a motor vehicle which collided with an automobile, resulting in the death of A. L. Tilly, Arthur D. Carpenter, Jr., and James Arthur Carpenter. Virginia L. Tilly, widow of A. L. Tilly, and Mary Ellen Carpenter, widow of Arthur D. Carpenter, Jr. and mother of James Arthur Carpenter, as administratrices, brought separate actions against Ferguson Steere Motor Company and Joe Flippin to recover damages under the general wrongful death statutes of New Mexico, § 22-20-1 and § 22-20-3, N.M.Stat.1943. After an investigation the plaintiffs determined that Flippin was operating the motor vehicle as a public conveyance for Ferguson Steere Motor Company, a common carrier, and conceded that as to it a cause of action was limited to the remedy provided for in the common carrier death statute, § 22-20-4, N.M.Stat.1953. The plaintiffs dismissed the actions as to Ferguson Steere Motor Company and the court sustained Flippin's motions to dismiss, leaving for disposition defendants' counterclaims. The widows then instituted actions to recover $10,000 for each death under the provisions of the common carrier death statute. All the cases, including counterclaims of the defendants, were consolidated for trial and a jury returned a verdict in favor of the plaintiffs in all cases. Judgment for $10,000 was entered for plaintiffs in each of the three cases brought under § 22-20-4. No appeal was taken from these judgments.

In dismissing the actions against the defendant Flippin, the trial court was of the opinion that no cause of action exists in New Mexico against an employee-driver of a common carrier in a case of this nature. The sole question presented is whether the remedy provided for in § 22-20-4 is exclusive or if in addition a cause of action exists against a negligent employee-driver under the general death statute.

The applicable New Mexico statutes were enacted in 1882 as part of a general Act on damages. They read as follows:

§ 22-20-1, N.M.Stat.1953:

"Death by wrongful act or neglect — Liability in damages. — Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, 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."

§ 22-20-3:

"Personal representative to bring action — Damages — Distribution of proceeds of judgment. — Every such action as mentioned in section 1821 22-20-1 shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be distributed as follows:

"First. If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife and a child or children or grandchildren, then equally to each, the grandchild or grandchildren taking by right of representation; if there be no husband or wife, but a child or children, or grandchild or grandchildren, then to such child or children and grandchild or grandchildren by right of representation; if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor; if there be no father, mother, husband, wife, child, or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons."

§ 22-20-4:

"Death caused by railroad, stage coach or public conveyance — Action for damages — Defense. — 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 state stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from 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 ten thousand dollars ($10,000), 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 (6) 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; * * *."

The plaintiffs contend that § 22-20-1 creates a cause of action in all cases where death is caused by the wrongful act, neglect or default of another where the injured person would have had a cause of action had he survived, and that the driver of a common carrier public conveyance is not excluded from this section. It is said that the forfeiture provision of § 22-20-4 creates a cause of action for the benefit of different persons and for different plaintiffs; that the remedy is for different acts, omissions, or misconduct and for the recovery of different damages, both in amount and nature. The argument is plausible but we think the implications of the decisions by the New Mexico courts, and by this court, lead to the conclusion that the remedy provided for in § 22-20-4 is an exception to the general death statute and is exclusive when death is caused under facts bringing the case within that section. Apparently the New Mexico bench and bar have construed the section as the trial court did. The section has been on the New Mexico statute books for approximately seventy-five years, and so far as we know, no one has sought to recover from a negligent employee in addition to recovery from the common carrier. This is also true in Missouri and Colorado, from which the New Mexico statutes were taken, although the courts of each of those states, contrary to the New Mexico rule, have held that the remedy is not limited to the common carrier statute but the plaintiff may elect to proceed under either statute, but may not proceed under both sections. Jackson v. St. Louis-San Francisco Ry. Co., 357 Mo. 998, 211 S.W.2d 931; Friedrichs v. Denver Tramway Corporation, 93 Colo. 539, 27 P.2d 497.

The statute was first considered by the territorial Supreme Court of New Mexico in Romero v. Atchison, T. & S. F. Ry. Co., 11 N.M. 679, 72 P. 37, where the administrator brought suit to recover damages from a railroad company for the wrongful death of a person accidentally killed in the railroad yards. In holding that recovery was limited to the forfeiture section (now § 22-20-4), it was stated that at common law no action would lie for an injury caused by the death of a human being. It was said that "If a right of action now exists, therefore, it must be by virtue of legislative enactment." Referring to Missouri cases which had considered the statute of that state, the court stated that damages for a tort to a person resulting in death were not recoverable at common law; that where a statute gave a right of action and provided a remedy it could be maintained, subject only to the limitations and conditions imposed by the statute; that where a statute gives a cause of action which did not exist at common law and designated the persons who may sue, they alone may bring the action.¹ The court concluded as follows:

"In this case the

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