126. FULGHAM v. MIDLAND VALLEY RAILROAD COMPANY UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF ARKANSAS, The questions discussed and decided in this case arose upon an argument based upon two motions, the one to strike out certain portions of the complaint which looked to the recovery of damages by the plaintiff as administrator of the estate of E. C. Pogue, deceased, for the benefit of said estate, growing out of pain and suffering and loss of time and expenses incurred by the deceased before his death; and in the other motion it was insisted that the complaint contained in one count two separate and distinct causes of action, and defendant moved the Court to require plaintiff to elect whether he would stand upon the cause of action which related to damages for the benefit of the widow and children of the deceased, or whether he would stand on the cause of action looking to recover damages for pain and suffering and loss of time and expenses incurred by the deceased before his death. Both motions, by consent, were argued and submitted together. The opinion sufficiently indicates the views of the Court on those motions. The views expressed by the Court were acquiesced in by counsel, and an amended complaint filed, confining the right of recovery to the injury to the widow and children of the deceased, because of his death. Oscar L. Miles, for plaintiff. Ira D. Oglesby, for defendant. ROGERS, District Judge. On April 22, 1908, Congress passed what is known as the "Railroad Company Employer's Liability Act." The complaint in this case is in two counts. The first is for the benefit of the estate of the deceased, and involves the right of the administrator to recover for pain and suffering, mental and physical (including wanton and negligent treatment of the deceased after his injury), up to the period of his death. The second count is for the benefit of the surviving widow and children of the deceased, and involves damages for his wrongful death, etc. It is apparent that these two separate and distinct causes of action are modelled upon the legislation of the State of Arkansas (Kirby's Digest, §§ 6285–6290), which were interpreted in the case of Davis v. Railway, 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283. In that case one cause of action was given under section 6285, and the other under sections 6289 and 6290. The former was for the benefit of the estate; the latter for the benefit of the widow and next of kin. Section 6285 expressly provides for the survival of the right of action for the injury in case of death as the result therefrom, and vests the right of action in the personal representatives of the deceased, for the benefit of his estate. The other two sections give a right of action for a death caused by negligence, and also vests the right of action in the personal representative of the deceased for the benefit of the widow and children. The Court in Davis v. Railway, supra, held that the statutes creating these two causes of action were not in conflict, were in their natures separate and distinct, and both vested in the personal representative, and might proceed pari passu in one suit. What of the Federal statute quoted above? First, can plaintiff avail himself of the Arkansas statutes in this character of case for any purpose? It is admitted the suit was brought under the Federal statute quoted. . . . Until Congress has acted with reference to the regulation of interstate commerce, State statutes regulating the relations of master and servant and incidentally affecting interstate commerce, but not regulating or obstructing it, may be given effect; but when Congress has acted upon a given subject, State legislation must yield. In Gulf Colorado, etc., Railroad Co. v. Hefley, 158 U. S. 99, 15 Sup. Ct. 804, 39 L. Ed. 910, the Court said: "When a State statute and a Federal statute operate upon the same subjectmatter, and prescribe different rules concerning it, the State statute must give way." I come now to examine the Act under consideration. It is in derogation of the common law, and must be strictly construed, but not so strictly as "to defeat the obvious intention of Congress as found in the language actually used according to its true and obvious meaning." Johnson v. Southern Pacific Railroad Company, 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363. I think this Act is in harmony with the purposes and recommendations of the President in at least two messages, and also in harmony with what it is claimed is the strong trend of the public mind in nearly all civilized countries at this time. It proceeds on the theory that the railroad corporations are quasi public corporations, and that the railroad company in the first place, and the public in its final analysis, should be insurers of the lives and persons of its employees while engaged in interstate commerce, for if the railroad companies are to be the insurers of their employees they must in the end be reimbursed also by their customers for whom they do the carrying business, and in its last analysis their customers are simply the public. . . . These changes are all distinctive advantages to the employee, and all in derogation of the common law, and some of them far in advance of this statutes of this State in like cases. But it will be observed on the other hand that the Act makes no provisions for the survival of that action, so given, for an injury sustained, in the event of the death of the injured employee. In Ward v. Blackwood, Ad., 41 Ark. 298, 48 Am. Rep. 41, the Court said: "At common law no action for a tort survived the death either of him who inflicted or of him who received it. 'No action,' said Lord Mansfield, 'where in form the declaration must be quare vi et armis et contra pacem, or where the plea must be that the testator was not guilty, could lie against the executor; upon the face of the record the cause of action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crime, are buried with the offender.' Hambly v. Trott, Cowper, 375. "So an action would not lie for the personal representative. Executors and administrators are the representatives of the temporal property that is, the debts and goods- of the deceased, but not of their wrongs, except when those wrongs operate to the temporal injury of their personal estate.' Chamberlain's Adm'r v. Williamson, 2 Maule & S. 408, per Lord Ellenborough. "But our statute has changed the common law. Section 4760 of Gantt's Digest provides: For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, or, after his death, against his executor or administrator, in the same manner and with the like effect in all respects as actions founded on contracts."" But it will be seen that the statute of Arkansas did precisely what the statute under consideration did not do it provided expressly for the survival of the action, and vested the right of action in the personal representative in the event the injured person died. It cannot be that legislation so much discussed in and out of Congress, and which had to be so carefully matured and drawn in order to meet the views of the Courts, legislation, too, which inherently shows the skill of the lawyer evidently familiar with the settled principles of the common law, which it modifies in the interest of justice and humanity, is not expressive of the will of Congress, or omits anything which Congress intended to do by it. It would have been so easy for Congress to have said, as the legislation of so many States had previously provided, that in the event the employee injured should die from the injury his cause of action should survive to his personal representative, that it can scarcely be conceived that the provision would have been omitted had Congress so intended. But whatever Congress may have intended, it has not done so, and the Courts must confine themselves to the administration of the law, and neither add nor take from a statute where its language is clear and unambiguous. In the opinion of the Court the right of action given to the injured employee by the Act of April 22, 1908, does not survive to his personal representative in the event of his death, but, as at common law, perishes with the injured person. I might add that this conclusion is in harmony with the known purposes of the Act, which was intended to make some provision for the unfortunate family of the deceased employee, and not to make provision for the creditors of his estate. Can it be supposed that Congress would make a railroad company the insurer of an employee, killed in its service, for the purpose of paying the debts the employee had incurred in his lifetime? And yet that would be the inevitable result if the contention of plaintiff's counsel is sound, for whatever is recovered on account of injuries sustained and for which the injured employee had a cause of action in his lifetime must go to his estate. Indeed, such is the prayer of the complainant in this very case. 16 SUB-TITLE (II): HARMS TO SUNDRY PROFITABLE RELATIONS (1706. Queen's Bench, 11 127. L. C. J. HOLT, in Keeble v. Hickeringill. East 574, note.) He that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so? Though they do not affect any damage, yet are they mischievous in themselves; and therefore in their own nature productive of damage; and therefore an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punishment; as to say a merchant is broken, or that he is failing, or is not able to pay his debts, 1 Roll. 60, 1; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving profit by his employment. Now there are two sorts of acts for doing damage to a man's employment, for which an action lies; the one is in respect of a man's privilege; the other is in respect of his property. In that of a man's franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action; though by grant from the King. The other is where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood; there an action lies in all cases.1 Topic 1. Destruction of the Relation by Violence, Nuisance, or similar Act 128. REGISTRUM BREVIUM (1595). Breve de clauso fracto et servientibus verberatis (fol. 93 b). Quare vi & armis clausum ipsius A. apud N. fregerunt, & arbores suas ib idem nuper crescentes succiderunt, & in viuarijs suis ibidem piscati fuerunt, & piscem inde ac arbores praedictas, nec non alia bona & catalla sua ad valentiam decem librarum ibidem inuenta ceperunt & asportauerunt, & in C. seruientem suum, vel seruientem suam, vel tenentem, vel natiuum vel natiuam (Et si plures fuerint, dicatur sic; & in homines & seruientes suos) ibidem insultum fecerunt, & ipsum, vel ipsam (vel ipsos) verberauerunt, vulnerauerunt & male tractauerunt: per quod idem A. seruitium seruientis sui praedicti, vel seruientis suae praedictae, vel natiui vel natiuae predicti vel praedictae, per magnum tempus amisit. Vel sic: seruitium seruientium suorum praedictorum per magnum &c. Vel sic: seruitium eorundem hominum & seruientium suorum praedictorum per magnum tempus amisit, & alia enormia ei intulit ad graue damnum &c. 129. REGISTRUM BREVIUM (1595). servientibus comminatis (fol. 111 a). Breve de clauso fracto et tenentibus et 1 [CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Henry Sidgwick, "Elements of Politics," c. IV, § 4, par. II, par. IV. Henry T. Terry, “Some Leading Principles of Anglo-American Law,” c. XI, §§ 350-355, p. 343, § 369, p. 361. Thomas E. Holland, "Elements of Jurisprudence," 9th ed., c. XI, par. IV, p. 175.] |