Wilson v. Denver & R.G.R. Co.

• Decision Date: 05 January 1920
• Docket Number: 9415.
• Court: Colorado Supreme Court
• Parties: WILSON v. DENVER & R. G. R. CO.

187 P. 1027

68 Colo. 105

WILSON v. DENVER & R. G. R. CO.

No. 9415.

Supreme Court of Colorado

January 5, 1920

Rehearing Denied March 1, 1920.

Error to District Court, Chaffee County; James L Cooper, Judge.

Action by Luticia Obedience Wilson, as administratrix of the estate of George D. Wilson, deceased, against the Denver & Rio Grande Railroad Company. Cause dismissed and plaintiff brings error.

Reversed with instructions.

G. K Hartenstein and Harry L McGinnis, both of Buena Vista, for plaintiff in error.

E. N Clark, T. M. Stuart, and Ralph G. Lindstrom, all of Denver for defendant in error.

SCOTT J.

This action was commenced by the plaintiff as widow to recover damages for the alleged negligent killing of her husband, an employé of the defendant in error.

Judgment was recovered, and upon review this judgment was set aside. Denver & Rio Grande R. R. Co. v. Wilson, 62 Colo. 492, 163 P 857.

It developed on the former hearing that the defendant was at the time engaged in interstate commerce, and it was held by this court that recovery could not be had by plaintiff as widow of deceased, as provided by the Colorado statute, but that the action must be by a personal representative of the deceased, as provided by the federal Employers' liability Act (U. S. Comp. St.§§ 8657-8665) under which act alone the action may be prosecuted.

In the district court, the plaintiff was permitted to and did amend her complaint in the material particulars only that the amended complaint fixed the relationship of the plaintiff to the deceased as administratrix of the estate, instead of as widow, to comply with the federal statute in that respect, and with the further allegation that the defendant was engaged in interstate commerce at the time of the accident.

In all other material particulars the amended complaint is the same as the original complaint in the statement of facts.

The defendant moved to strike the amended complaint from the files upon the following grounds:

'That said amended complaint pleads a cause of action which arises under and solely by virtue of the provisions of an act of Congress of the United States known generally as the federal Employers' Liability Act; that said cause of action so pleaded in said amended complaint is a new, different, independent, separate, and distinct cause of action from that pleaded in the original complaint in this action, and is brought by a different party plaintiff; that said amended complaint attempts by way of amendment to plead a new, different, independent, distinct, and separate cause of action from that pleaded in the original complaint.'

This motion was sustained, and the cause dismissed, the court holding that the amended complaint constituted a new cause of action, and was therefore barred by the twoyear limitation provided in the federal statute. This judgment is before us for review.

On the former hearing we said:

'The death of plaintiff's husband, through the negligence of defendant, its officers, agents, or servants, constitutes the cause of action, if any. If the facts establish a case the defendant would be liable for damages therefor either to the plaintiff in her individual capacity or to the personal representative of the deceased, depending in that regard whether the employé was at the time engaged in intra or inter state commerce. It has been held that a plaintiff suing in her individual capacity under the state law may amend her complaint by making herself a party plaintiff as the personal representative of deceased, and alleging the cause of action under both the state and federal statutes. Missouri, etc., R. R. Co. v. Wulf, supra [226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134]; Koennecke v. Seaboard Ry. Co., supra [101 S.C. 86, 85 S.E. 374]; Vaughn v. St. Louis & S. F. R. Co., supra [177 Mo.App. 155, 164 S.W. 144].

'In the instant case, however, there was no attempt to amend the complaint, and the question, therefore, is not before us for determination. If the plaintiff has rights in that regard, she is not to be foreclosed by that which is said herein.'

This must be held to be the law in this case, and therefore we must hold, as there declared, that the death of plaintiff's husband, through the negligence of defendant, its officers, agents, or servants, constitutes the cause of action, and that, if the facts establish a case, the defendants are liable in damages therefor, either to the plaintiff in her individual capacity, or to the personal representative of deceased, depending in that regard upon whether the employer was at the time engaged in intrastate or interstate commerce.

The facts alleged in the amended complaint being identical with the facts in the complaint there considered must, under such ruling, be held to be the same cause of action, and not a new and different cause of action as contended by the defendant in error. The cases cited in the former opinion are conclusive of the question.

In M., K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134, cited, the action was instituted in the United States Circuit Court, and, as in this case, reliance was had on the state statute. The court allowed an amendment of the petition so as to permit the plaintiff to appear as the personal representative of the deceased. The Supreme Court, speaking through Mr. Justice Pitney, said:

'The argument for reversal rests wholly upon the mode of procedure followed in the circuit court. It is contended that the plaintiff's original petition failed to state a cause of action, because she sued in her individual capacity, and based her right of recovery upon the Kansas statute, whereas her action could legally rest only upon the federal Employers' Liability Act of 1908, which requires the action to be brought in the name of the personal representative of the deceased; that the plaintiff's amended petition, in which for the first time she set up a right to sue as administratrix, alleged an entirely new and distinct cause of action, and

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