Summary
In Wood, the Supreme Court of Mississippi explained its rationale for concluding that Mississippi law did not require a Tennessee administratrix who was the decedent's “personal representative” under the FELA to have ancillary letters under Mississippi law or to open an estate in Mississippi to seek relief under the FELA in Mississippi state court.
Summary of this case from In re Camp Lejeune Water Litig.Opinion
No. 30469.
February 27, 1933.
1. MASTER AND SERVANT.
In action for engineer's death, whether brakes on freight train were defective, and whether, if brakes had been in good order, engineer could have backed train into siding and avoided collusion with passenger train, and thus avoided effect of engineer's contributory negligence, held for jury (Federal Employers' Liability Act, section 3 [45 U.S.C.A., section 53]).
2. MASTER AND SERVANT.
Railroad engineer's contributory negligence held no defense to action for death where interstate railroad violated safety appliance statute (Federal Employers' Liability Act, section 3 [45 U.S.C.A., section 53]).
3. DEATH.
Five thousand dollars for death of railroad engineer held sufficient under evidence showing engineer deliberately took dangerous chance, though his contributory negligence could not be considered (Federal Employers' Liability Act, section 3 [45 U.S.C.A., section 53]).
4. DEATH.
Federal Employers' Liability Act controls in every substantive particular which includes party in whom cause of action for death is vested (Federal Employers' Liability Act, section 3 [45 U.S.C.A., section 53]).
5. DEATH.
Administratrix lawfully appointed in another state could sue in state for employee's death under Federal Employers' Liability Act without taking out ancillary letters (Federal Employers' Liability Act, section 3 [45 U.S.C.A., section 53]; Code 1930, section 1723).
APPEAL from circuit court of Pontotoc county. HON. THOS. H. JOHNSTON, Judge.
E.B. Cooper, of Laurel, and B.N. Knox, of New Albany, for appellant.
It is fundamental that a foreign administrator has no power to sue in the courts of another state.
Kilpatrick v. Bush, 23 Miss. 99; Boyd v. Lambeth, 24 Miss. 433; Riley v. Moseley, 44 Miss. 37.
As appellee had not complied with section 1723 of the Code of 1930 the motion to dismiss should have been sustained.
Hope v. Hurt, 59 Miss. 174; Jackson v. Scanland, 65 Miss. 481, 4 So. 552.
The statute is plain and means that a foreign administrator has no standing or authority to sue in the courts of this state or receive any money or property or debts for intestates until after filing in the office of the clerk of the chancery court of the county where there may be some person indebted to the deceased, or having some of his effects in possession, a certified copy of the record of the appointment and qualification of the administrator according to the law of the state where he qualified.
City Savings Trust Company v. Briancheri, 111 Miss. 774, 72 So. 196; Sims v. Walden, 65 Miss. 211, 3 So. 457.
Section 1628 of Code of 1930 was enacted to cover cases of this character and clearly evinces the policy of the state to afford a remedy for a situation such as has been developed here. This statute was used by a resident of Tennessee and its use sustained.
Yazoo M.V. Railroad Company v. Jefferies, 99 Miss. 534, 55 So. 354.
Any inference that defects caused the sticking is entirely removed for it clearly appears why the brakes stuck and the sticking was due to the normal action of the brakes and not to defects.
Patton v. Texas P.R.R. Co., 179 U.S. 658, 45 L.Ed. 361.
The evidence in this case in kind and amount is not sufficient to warrant a verdict against appellant.
G.M. N.R.R. v. Wells, 275 U.S. 455, 72 L.Ed. 370; Chicago M. St. P.R.R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041.
Notwithstanding the fact of the provisions of the Employers Liability Act, which negative contributory negligence on the part of the injured employee as a complete defense, there cannot be a recovery under that act where the negligence of the employee was the sole and proximate cause of the injury. As this action is controlled by the Federal Employers Liability Act, all rights and obligations depend upon it and applicable principles of the common-law as interpreted and applied by the Federal courts.
Horton case, 233 U.S. 492, 58 L.Ed. 1062; Sou. Ry. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212.
Appellee cannot hold the company liable for a disaster that followed the disobedience of a rule intended to prevent it, when the disobedience was brought about and intended to be brought about by decedents.
Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139.
There can be no recovery under the Employers Liability Act when it appears that the decedent's injury and death were due solely to his own reckless and indifferent conduct.
Virginia Railway Company v. Linkhous, 144 C.C.A. 386, 230 Fed. 88, 148 C.C.A. 543, 235 Fed. 49; Great Northern v. Wiles, 240 U.S. 444, 60 L.Ed. 732; St. Louis Southwestern Railway Co. v. Simpson, 76 L.Ed. 689; Southern Railway Company v. Youngblood, Administratrix, 76 L.Ed. 703.
It is well settled that, unless such right is given to him by statute, an executor or administrator cannot sue in his representative capacity in any state or country other than that in which his letters testamentary or administration were granted.
24 Corpus Juris, section 2702, page 1129.
In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficacy to the appointment outside of the territorial jurisdiction of the state within which it was granted. All hold that, in the absence of such a statute, no suit can be maintained by an administrator in his official capacity, except within the limits of the state from which he drives his authority. If he desires to prosecute a suit in another state he must first obtain a grant of administration therein in accordance with its laws.
Noonan v. Bradley, 9 Wall, 394, 19 L.Ed. 757; Cornell Company v. Ward, 168 Fed. 51; Dodge v. Town of North Hudson, 177 Fed. 986; Louisville Nashville R.R. Co. v. Brantley, 96 Ky. 297, 28 S.W. 477, 49 A.S.R. 291.
Unless section 1723 does permit a foreign administrator to bring the suit, then the foreign administrator has no right to sue at all in the courts of this state.
Lee v. Missouri Pacific R.R. Co., 195 Mo. 400, 92 S.W. 614; Ferguson v. Harder, 252 N.Y.S. 783; Hall v. Southern R.R. Co., 149 N.C. 108, 62 S.E. 899; Hall v. Southern R.R. Co., 146 N.C. 345, 59 S.E. 879; Maysville R.R. Co. v. Marvin, 59 Fed. 91; Union R.R. Co. v. Shacklet, 119 Ill. 232, 10 N.E. 896; Brooks v. Southern Pacific R.R. Co., 148 Fed. 986.
If the cause of the sticking of the brakes was left unexplained by the proof in the record the court cannot infer that the cause of the sticking was due to a defect.
Patton v. T. P. Railroad Company, 179 U.S. 658, 45 L.Ed. 361.
Admitting appellee is what she claims to be then she, the same as any other litigant after she has qualified as the personal representative of the decedent i.e., administratrix, the Federal act leaves her in the same class as any other litigant and she should comply with the statutes of Mississippi.
Geo. T. and Chas. S. Mitchell, of Tupelo, for appellee.
Section 1723, Code of 1930, has no application whatever to those causes of action on the part of a foreign executor or an administrator which do not seek to recover the assets of the estate of a testator or intestate. The statute applies solely to those causes of action on the part of a foreign executor or administrator which do seek to recover the assets of the estate of their testator or intestate.
Section 1723, Code of 1930.
If the cause of action accrued to the deceased in his lifetime or if the recovery that may be had becomes a part of the assets of the estate of the deceased, or if the cause of action survives to the administrator or the administratrix, as a chose in action, constituting a part of the assets of the estate of the deceased, under the common-law, a foreign administrator or administratrix was without authority to institute suit thereon in a foreign jurisdiction under any conditions.
A recovery under the Federal Employer's Liability Act is no part of the assets of the estate of the intestate but the personal representative is a mere nominal plaintiff and brings the suit solely for the benefit of the dependent widow and children and acts in the character of a trustee for their benefit being designated by the Federal statute itself as the only party who may institute and maintain the cause of action.
17 Corpus Juris, 1210; Richards v. Riverside Iron Works, 56 W. Va. 510, 49 S.E. 438; Kennedy v. Davis, 55 So. 104; Kelly v. U.P. Ry. Co., 125 S.W. 818; K.C.S.R.R. Co. v. Leslie, 238 U.S. 599; Wells, v. Davis, 261 S.W. 58; Knight v. M.E.M. W.R.R. Co., 140 N.W. 839; Jeffersonville R.R. Co. v. Swayne, 26 Ind. 484.
At the common law, and especially under the principles of comity existing between the different states an action in tort which does not seek to recover the assets of the estate of a decedent is maintainable by a foreign administrator in a foreign jurisdiction.
13 Am. Eng. Ency. of Law (2 Ed.), 948, 950, 953; 24 Corpus Juris 1130, No. 2703; Connor v. Railroad Co., 18 L.R.A. (N.S.) 1257; Purple v. Whitehead, 49 Vt. 187; Knight v. Moline, E.M. W.R.R. Co., 140 N.W. 839, L.R.A. 1917A 39.
It is the absolute and mandatory duty of a railroad company, engaged in interstate commerce, to equip and maintain not less than eighty-five per cent of the cars in the train with power brakes which may be used and operated by the engineer from the locomotive drawing such train and to equip and maintain all locomotives used in interstate commerce, and boilers, tenders and all parts and appurtenances thereof in proper condition so as to be safe to operate in the service to which the same are put.
B. O.R.R. Co. v. Groeger, 69 L.Ed. 419; Lehigh Valley R.R. Co. v. Beltz, 10 F.2d 74; Thornton v. R.R. Co., 175 N.W. 71; Davis v. Callen, 270 S.W. 305; Federal Safety Appliances Act, 45 U.S.C.A.R. Rs.; Federal Boiler Inspection Act, 45 U.S.C.A. Railroads, sec. 9, p. 96; 45 U.S.C.A. Railroads, sec. 23, p. 79.
The statute requires, "not only that a train be equipped with the prescribed minimum per centage of powerbraked cars but also that all powerbraked cars in the train which are associated together with such minimum shall have the brakes so used and operated" seems, under the authorities to be whether the train brake system as a whole was capable of efficient use and operation at the time in question. Equipment of the train with a powerbrake system conforming to the standard set by the Act is not enough. It must also meet and respond to the test of actual use. It must give the engineer efficient control of the train.
2 Roberts Federal Liabilities (2 Ed.), p. 1168, sec. 597; Spokane I.E.R.R. Co. v. Campbell, 241 U.S. 498, 60 L.Ed. 1125.
The failure of the brakes to operate properly at the time and place in question, contributed proximately to cause the collision. To say the least under the evidence whether the failure of the brakes contributed proximately to cause the collision was a question for the jury.
Hayes v. R.R. Co., 111 U.S. 228, 28 L.Ed. 410; R.R. Co. v. Kellog, 94 U.S. 69, 24 L.Ed. 257; R.R. Co. v. Hall, 232 U.S. 94; Delk v. R.R. Co., 225 U.S. 80, 55 L.Ed. 590; R.R. Co. v. Campbell, 241 U.S. 507, 60 L.Ed. 1125.
The amount of damages to be awarded was an amount that would be equivalent to compensation for the deprivations of the reasonable expectation of pecuniary benefits on the part of the beneficiaries that would have resulted from the continued life of the deceased, computed upon the basis of the present cash value of such benefits together with such reasonable sum as would compensate the deceased for the conscious pain and suffering endured by him before his death.
2 Roberts Federal Liabilities of Carriers (2 Ed.), 902; R.R. Co. v. Goens, 119 S.E. 669; R.R. Co. v. Calahan, 209 Kan. 348, 272 S.W. 880; R.R. Co. v. Kelly, 241 U.S. 485, 30 L.Ed. 1117; Lewis v. R.R. Co., 83 So. 537; Jones v. R.R. Co., 78 So. 569; Simmons v. R.R. Co., 96 So. 12.
The verdict of five thousand dollars as returned by the jury is inadequate.
Argued orally by Ellis B. Cooper and B.N. Knox, for appellant, and by Geo. T. and Chas. S. Mitchell, for appellee.
Appellee's decedent was the engineer in charge, as such employee, of an interstate southbound freight train of appellant on August 15, 1927. This freight train reached the station called Westport, in the state of Tennessee, at about 4:59 or five o'clock P.M. A northbound passenger train was due at this station at 5:07, and to depart therefrom at 5:08. The passenger train was, of course, superior in right to the freight train, and it was the duty of the engineer of the freight train, under the rules, to take the siding at the nearest or north entrance thereto as he arrived at the passing track of said station. The passing track of some two thousand feet in length was clear, and there was no sound reason why the freight engineer did not enter it from the north end, as his duty required of him. When he neared the north end of the passing track, he slowed down, and all the other members of the train crew supposed that he intended to take the course mentioned. However, just before he reached the said passing track, he increased speed, whereupon both the head brakeman and the fireman called his attention to the fact that he would have to take the siding at this station to clear the track for the passenger train then soon due. No answer was made by the engineer. The conductor and the flagman riding in the caboose noticed this failure to head in at the north or nearest entrance to the side track, and noticed the increased speed, whereupon both the latter employees looked out for the station signals to see if any signal was there displayed indicating that the freight train should proceed without clearing there for the passenger train. The station agent also saw the rate of speed, and as the train passed the depot he gave the engineer a signal by hand that he must not pass, but would have to clear the track at that point for the other train. Seeing all this, the conductor immediately applied the emergency brakes by a device in the caboose supplied for that purpose. The engineer succeeded nevertheless in "dragging the train," as some of the witnesses term it, to a point south of the south entrance to the passing track, and thereupon attempted to back his train into the siding, and in this manner to clear the track.
According to the weight of the testimony, it was about one minute past five o'clock when the freight train was brought to a stop at the south end of the passing track; and according to the schedule of the passenger train, that train would be due to arrive at this particular point about 5:06 or 5:07. It did actually arrive there at 5:07. Thus the engineer had a space of from five to six minutes, in which to back his train, which was a light train of only sixteen cars, into the siding and clear the main line. And according to all or practically all the testimony it would not require over two or three minutes to back in a train of this length and clear the track, if the machinery were in good and safe condition. Under the rules, when this freight train had stopped on the main line south of the depot and with another train due from the opposite direction so soon, it was the duty of the head brakeman to proceed at once and with all speed towards the south, the direction from which the passenger train was coming, and to flag the passenger train, and particularly was this true in this case because the track south of where this freight train had stopped was not straight, but was in a curve so that the employees on the engine of the passenger train could not become aware that the track ahead was blocked except in response to a flag. The head brakeman, in obedience to this rule, immediately started down the track to flag as was his duty, but he was called back by the engineer; it being the further rule that the head brakeman in such a case is under the orders of the engineer. The evidence is sufficiently, if not conclusively, to the effect that if the head brakeman had not been called back by the engineer he would have had time to have proceeded far enough down the track to have given warning in time to have stopped the passenger train before it arrived at the point of collision.
When the switch was thrown, and which was immediately done, for the backing of the freight train into the siding and the signal was given to the engineer to back, it was found that the train could not be moved because the brakes were stuck. The engineer made diligent efforts by the driving of his engine backward and forward against and from the cars to unloose the brakes: the usual response not having obtained by the use of the brake valve on the locomotive which, when in proper working condition, will release the brakes in less than one minute's time. Not being able to release them from the engine, the train crew, and particularly the conductor, swiftly moved from car to car releasing the brakes by hand or by "bleeding" them as it is termed in railroad parlance; with all these efforts only three cars had been pushed into the side track when the passenger train came upon the scene running at a high rate of speed, and the result was a collision, great property damage, personal injury to numbers of people, and the death of the freight engineer.
There is evidence sufficient to go to the jury that the brakes on this freight train were defective and that this was known to the engineer before he reached Westport. This is all the more reason why he should have headed in at the north end of the passing track, and why he later should have sent forward the head brakeman to flag, instead of calling him back. The evidence is still stronger that the brakes and the braking mechanism were defective when and at the time the engineer attempted to back into the siding, and which, according to the great preponderance of the testimony, he had time to do and to safely clear the track if the braking apparatus had been in that condition of safety required by the several federal safety appliances statutes. The engineer was guilty of contributory negligence in two respects, and without his said negligence the injury would never have occurred. But in spite of his contributory negligence in both respects, the evidence is sufficient to show that if the brakes had been in good order and capable of that safe operation required by law in regard to the appliances on interstate railroads, he would have been able to avert any injury and thus to avoid the effects of his contributory negligence. Therefore, the express terms of the proviso of section 53, title 45, United States Code Annotated, applies; that proviso reading as follows: "Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." The law in such cases has been settled in numerous cases by the federal courts, and nothing of value can be here added by a review of the decided cases. See for instance, Union Pac. R. Co. v. Huxoll, 245 U.S. 535, 38 S.Ct. 187, 62 L.Ed. 455, and our own case, Alabama V.R. Co. v. Dennis, 128 Miss. 298, 91 So. 4, as recognizing the absolute and unqualified duty of the interstate carrier to maintain the safety appliances covered by the federal statutes, and when the facts show such a failure, as a contributing cause to the injury, then the futility of the defense of negligence on the part of the employee.
There was a verdict for plaintiff for five thousand dollars. Deeming this amount grossly inadequate, appellee made a motion for a new trial and has prosecuted a cross-appeal, and urges that the verdict should have been not less than twenty-five thousand dollars, based upon the decedent's life expectancy according to the average mortality tables and the monthly amount which the decedent out of his salary as engineer contributed to his statutory beneficiaries. There are several reasons why, as we think, the jury was warranted in withholding any larger amount than was allowed here. One of these reasons is that while contributory negligence is not a defense in an interstate case involving defective appliances, and the amount of the recovery is not to be diminished on account thereof, this rule does not prevent the jury from applying practical common sense to the solution of the question of probable life expectancy, and the jury in this case may have come to the conclusion that there would not probably be any life expectancy for a substantial period of an employee such as the engineer in this case whose disposition to deliberately and stubbornly take dangerous chances is so clearly demonstrated, as was done under the evidence in this case. But if it may be used that the jury did not take any such view and would not have been warranted in so doing, there is the still more pertinent consideration, that the jury may have concluded that, had this engineer survived, he would have received the same just judgment at the hands of the employer company as was accorded to the head brakeman, to-wit, an immediate discharge, with no substantial prospects of obtaining like employment elsewhere, thus leaving his future earning capacity problematical and conjectural.
Appellant railroad company has raised a point in this case that has given us far more trouble than any of the matters above mentioned; and that point is, that although the suit was brought by and in the name of the administratrix, and although it is admitted that the administratrix was duly and legally appointed by the proper court of Madison county, Tennessee, yet it was objected by appellant and admitted by the administratrix that she had taken out no ancillary letters of administration in this state, nor had she filed the certified copy of her foreign appointment as required by section 1723, Code 1930. Appellant railroad company relies on the well-recognized and generally accepted rule that the appointment of an administrator or executor has no extraterritorial effect, and that as a general rule an administrator can sue in another state only upon the terms allowed by statute in the latter state, and that the foreign administrator must bring himself within those statutes. Appellee takes the position that the Federal Employers' Liability Act, in appointing the personal representative as the person to bring the suit, and as the only person who can do so, created the personal representative as a statutory agent or trustee, not of the estate of the decedent, but of those entitled to participation in the proceeds of the recovery, and that therefore the rules applicable to the ordinary administrator or executor in probates do not control under this federal statute.
Many authorities are cited on both sides, but we have come to the conclusion that the logic of the federal decisions supports the view contended for by appellee. The federal statute controls in every substantive particular, and this includes, of course, the party in whom the cause of action is vested, and who alone is authorized to sue. If the federal statute had allowed the beneficiaries to sue in their own name, this would be controlling upon state courts, although the beneficiaries were nonresidents, and likewise had the statute authorized the suit by and in the name of a trustee or agent, or a next friend. It was the purpose of the federal statute in restricting these suits to the personal representative to provide that a responsible person, officially designated as such by the local authorities, who are to be presumed to be well informed concerning the decedent's statutory beneficiaries, should be recognized as the plaintiff, and that thereby collateral issues shall be eliminated from the trial in respect to who are actually the beneficiaries, and it may be that there was also the purpose that the appointed personal representative could be held on his official bond in case he failed to account to the entitled parties after payment to the representative of the amount of the recovery, although in Maryland Cas. Co. v. McAlpin, 31 Ga. App. 303, 120 S.E. 644, it was held that the administrator is not liable on his bond in such case; the court holding that the recovery is no part of the decedent's estate.
We decide the question by an application of the language used in Lindgren v. United States, 281 U.S. 38, 41, 50 S.Ct. 207, 209, 74 L.Ed. 686, 690, where, in discussing the operation and effect of the Federal Employer's Liability Act (45 U.S.C.A., sec. 51), it was said: "By this section if the injury to the employee results in death, his personal representative — while not given any right of action in behalf of the estate — is invested, solely as trustee for the designated survivors, with the right to recover for their benefit such damages as will compensate them for any pecuniary loss which they sustained by the death." We are of the opinion that when the plaintiff has shown, as was shown in the case, that he has been actually and legally designated as the statutory trustee by a lawful appointment as the personal representative in the state, and in and by the court of that state, having competent jurisdiction to make the appointment, then the person so appointed may sue in this state under the Federal Employers' Liability Act, and that ancillary letters or a compliance with section 1723, Code 1930, is not necessary in such a case.
Affirmed on direct and on cross appeal.