Whitmer v. El Paso & S.W. Co.

• Decision Date: 17 December 1912
• Docket Number: 2,356.
• Citation: 201 F. 193
• Parties: WHITMER v. EL PASO & S.W. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

201 F. 193

WHITMER v. EL PASO & S.W. CO.

No. 2,356.

United States Court of Appeals, Fifth Circuit.

December 17, 1912

[Copyrighted Material Omitted]

Waters Davis and James M. Goggin, both of El Paso, Tex., for plaintiff in error.

John Franklin and W. M. Peticolas, both of El Paso, Tex. (W. A Hawkins, of El Paso, Tex., on the brief), for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and FOSTER, District Judge

SHELBY Circuit Judge.

The defendant owned and operated a railroad that extended into New Mexico. On the road near Cloudcroft, in that state, there was a bridge or trestle. The bridge had been used for a long time by adults and children as a passway. Near the bridge were public resorts, and the bridge was attractive to children who constantly used it as a passway, with the knowledge and consent of the defendant. For a long time it was in a safe condition, containing no gaps or pitfalls. Before the 19th of June, 1910, the defendant moved a plank from the bridge, or made a break or hole in the bridge, and left it in that condition. On that day Samuel Wood Whitmer then 13 years old, walked onto the bridge, as children and adults did habitually, and stepped into the hole or place so left open, fell through to the ground, and lost his life. He left surviving him as next of kin his mother and a brother ten years old. The mother was appointed administratrix of her deceased son by the proper Texas court, and, as administratrix, brought this suit to recover damages for the death. The petition, which copies the statutes of New Mexico allowing suits for wrongful death, contains an elaborate statement of the facts relating to the accident and death, and claims damages for the benefit of the mother and brother of the deceased. Evidence was offered which proved the death as alleged, and which tended to prove the facts constituting defendant's negligence as alleged. We do not elaborate the statement as to the proof of negligence, because we do not understand that it was claimed that there was no evidence on which to go to the jury on that point. The contention of the defendant seems to have been that the evidence showed no right of recovery for the benefit of the mother or the brother.

The mother, Mrs. Victoria Whitmer, testified as follows:

'My boy, who was killed, was a very large boy for his age, and very strong, and I considered him very bright, and, above all this, he was a very good boy, and stayed with me very closely. He was large for his age, heavy, healthy, and intelligent. His habits were good. He was the best child I ever knew, and one of the most affectionate of children to both myself and his brother. He was very industrious. He was not engaged in any employment at the time of his death, but delivered Saturday Evening Posts. I had asked for a Herald route for him, but he had never worked at it. I had asked friends to try and help him to get one the following year. He was affectionate to his brother, and really took care of him. He was of a generous nature, not selfish at all. He gave me a great deal of assistance around home; that is, as far as a little boy of his age can. He assisted me in my household affairs. Both these children lived with me up to the time of my little boy's death, and were supported by me. His little brother never did any work. He depended upon his brother Sam for everything. * * * I always helped them both. He simply helped his brother in one way only. He tried to make him good and like he was. Sam was a very obedient child, and helped me in that way only. * * * I could not give the particulars as to how Sam helped his younger brother, but can only say he helped him in every way. He just treated him as a little brother, and did everything for him. Of course, I have been away from home, and Sam did everything for him. I was away most of the time attending my classes. The dead boy always looked upon his younger brother as a little bit of brother. The dead boy was physically much the stronger, and perhaps would have made a much stronger man in every way. He was a more reliable boy than the little fellow, and he was superior and more like a grown person. My little boy Alfred seemed like a baby in comparison with him. The other boy assumed the responsibility because I was alone. There was three years difference in their ages. Sam, the deceased boy, did for both of us all the time. He was not of any pecuniary or financial assistance. He gave us physical assistance always. He gave me general assistance in running around the house and taking care of his brother. He cared for me in every way because he knew I relied upon him. * * * I am a school teacher. I have been teaching about seven or eight years. I have one little child. His name is Alfred Whitmer. He is now 11 years old. I had another son whose name was Samuel Wood Whitmer. These two children are the only children I ever had. Samuel Wood Whitmer died on the 19th day of June, 1910. He was 13 years old at the time of his death. He lost his life at Cloudcroft on that day. The 19th was Sunday. I had taken a cottage at Cloudcroft, and was there to spend the summer at Cloudcroft, and had taken the children along with me.'

The rulings on the pleadings in the progress of the case were to the effect that there could be no recovery for the benefit of the mother; and, after the evidence of the plaintiff was offered, on motion of the defendant, the jury was instructed to find for the defendant, on the ground that there could be no recovery, upon the record and evidence, for the benefit of the brother of the deceased. That the court directed a verdict for the defendant is assigned as error.

1. The statutes on which the suit is based, and those which are referred to in the opinion, are found in the Compiled Laws of New Mexico of 1897, and for convenience of reference are copied in a note, ^[1] the parts to which attention is especially called being put in italics.

Section 3214, on which the action is based, is similar to a provision found in the laws of many of the states, and, in brief, gives an action for damages where death is caused by the wrongful act, neglect, or default of any person or corporation, in cases in which the wrongdoer would have been liable to the party injured if death had not occurred. It prevents the civil right of action from being merged in the felony, if the wrong should be a felony, and preserves the right of action for the wrong, notwithstanding the death from the injury. Section 3215 provides that every action under section 3214 shall be brought by and in the name of the personal representative of the decedent, and that the jury 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, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect, or default. The section also provides that the recovery shall not be subject to the debts of the decedent, if the decedent leaves surviving him certain kindred, naming, among others, 'mother' and 'brother.' It further provides that the sum recovered shall be distributed among certain named relatives, if there be such, and, if not, then 'to be disposed of in the manner authorized by law for the distribution of the personal property of deceased persons. ' And one of the sections relating to the distribution of estates is as follows:

'If the intestate leave no issue, the whole of his estate shall go to his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents. If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent. ' Section 2033, Compiled Laws of New Mexico of 1897.

There are other statutes providing for the distribution of the estates of decedents which have no application on the facts of this case; and then section 2036 provides that, in default of all named distributees, the property of the decedent would escheat to the territory. It is therefore plain that the statute confers the right of action on the administrator of the decedent, authorizes the recovery of damages both compensatory and exemplary, and provides for the distribution or disposition of the amount recovered under any state of facts that could exist. The administrator's right of action is not dependent on the decedent's leaving surviving him a mother, brother, or other kindred. This is clear, without referring to other parts of the statute, from the allowance of exemplary damages, and from the provision for disposing of the funds recovered by the personal representative when there is no next of kin.

2. Under the Texas statutes allowing actions for death, the law requires the amount recovered to be divided by the verdict of the jury among those entitled to it 'in such shares as the jury shall find and direct. ' Under that statute, the failure to apportion the damages, objection being duly made is reversible error. Railway Co. v. Moore, 49 Tex. 31, 30 Am.Rep. 98. Doubtless the construction of the Texas statute, familiar in that state, led to superfluous averments, and caused the petition to be framed in other respects more in accordance with the Texas statute than the New Mexico statute on which the suit is based. The statute of New Mexico contains no provision requiring the jury to apportion the damages. When the law authorizes suit by the administrator for compensatory and exemplary damages, and directs that the sum recovered be paid to certain relatives, and, if there are no such relatives, that it be distributed under the laws providing for the...