130 Tenn. 435 | Tenn. | 1914
delivered the opinion of the Court.
Mrs. Naomi Bonham sued the railway company for damages. A jury in the circuit court found the issues in her favor, and assessed her damages at $10,000,.
Plaintiff’s original declaration contained this averment in respect of the capacity and right upon which her suit was predicated:
. “Plaintiff avers that the said T. F. Bonham left surviving him the plaintiff, Naomi Bonham, his wife, and who is now his widow and next of kin, and this suit is brought by plaintiff as the widow and next of kin of said T. F. Bonham, deceased, for her own use and benefit. Wherefore plaintiff sues the defendant company for $25,000 damages, and demands a jury' to try the issues.”
In no other capacity and right than as above set out did the plaintiff by any averment of her original declaration predicate her right to recover a judgment against the defendant in this cause.
To the original declaration, the defendant railway company interposed its plea of the general issue, to wit:
“That it is not guilty of any of the matters, wrongs, and injuries in plaintiff’s declaration alleged.”
The plaintiff joined issue in short upon the defendant’s plea.
The damages claimed by plaintiff are averred to-arise on account of the death of her husband, T. F. Bonham, which occurred on April 28, 1911, in Morgan county, Tenn., in tunnel No. 23, located between Glen Mary on the north and Nemo on the south, through which tunnel the railway company’s track was laid, over which track its trains were operated. At the time of his death T. F. Bonham was in the employ of the railway company, discharging the duties of an electrical signalman; his duties being to keep in proper order and repair all of the electric signals between Glen Mary and Nemo stations on the railroad line of the railway company, defendant.
In plaintiff’s original declaration she averred that on the 28th day of April, 1911, and for many years previous to that time, the defendant was and now is a foreign corporation, owning and operating a line of railroad or railway from Cincinnati, Ohio, through the States of Kentucky, Tennessee, Alabama, and Mississippi, to New Orleans, La.; said company being en
At the close of plaintiff’s evidence, the railway company moved the court to peremptorily instruct the jury to return a verdict in favor of the defendant railway company. This motion the court overruled, to which action the railway company excepted, and thereupon the railway company declined to introduce any evidence, and the court charged the jury with the result already stated.
Among the assignments of error on behalf of the railway company in this court, the first raises the question that the railway company was entitled to the peremptory instruction in the trial court upon the ground ■that plaintiff, in the capacity and right in which she sued, was not entitled to maintain this suit, because under its facts it falls within the terms and provisions of ah act relating to the liability of common carriers by railroads to their employees in certain cases, approved April 22, 1908 (35 Stat., 65, ch. 149, U. S. Comp. St. 1913, secs. 8657-8665), because under that act the remedy which it gives is conferred alone upon the personal representative of the deceased employee for the use of the beneficiaries named in that act.
“It is true that the recovery of the damages is not for the benefit of the estate of the deceased, but for the benefit of the surviving widow or husband and children. Brrt this •distinction between the parties to sue and the parties to be benefited by the suit makes clear the purpose of Congress. To this purpose we must
The result reached hy the court was a reversal of the judgment without prejudice to such rights as the personal representative might have.
Subsequent to the decision of the case last, cited, there was decided hy the same court Missouri, Kansas & Texas Railroad Co. v. Sallie C. Wulf, 226 U. S., 570, 33 Sup. Ct., 135, 57 L. Ed., 355, Ann. Cas., 1914B, 134, in which the action was commenced by Sallie C. Wulf in her individual capacity to recover damages sustained hy reason of the death of her son, Fred S. Wulf, while in the discharge of his duties as an employee of a common carrier engaged in interstate commerce; the death resulting from the bursting of a boiler due to defects which she claimed were attributable to the negligence of the employer. Plaintiff, in that suit, averred that she was the mother of deceased, who was an unmarried man, and who left surviving him no wife or children; that his father was also dead at the time of the death of deceased, and that plaintiff was the sole
“The argument for reversal rest's 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
“It seems- to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between her original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company and by reason of defects in one of its locomotive engines, due to its negligence; and that, since the deceased died unmarried and childless, the plaintiff, as his sole surviving parent, was the sole beneficiary of the action. It is true the original petition asserted a right of action under the laws of Kansas, without making réference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employers’ Liability Act, and to know that, with respect' to the responsibility of interstate carriers by railroad to their employees injured
“It is true that, under the federal statute, the plaintiff could not, although sole beneficiary, maintain the action except as personal representative. So it was held in American R. Co. v. Birch, 224 U. S., 547, 32 Sup. Ct., 603, 56 L. Ed., 879. But in that case there was no offer to amend by joining or substituting the personal representative, and this court, while reversing the judgment, did So without prejudice to such rights as the personal representatives might have. The decision left untouched the question of the propriety of such an amendment as was applied for and allowed in the case before us — an amendment that, without in any way modifying or enlarging the facts upon which the action was based, in effect merely indicated the capacity in which the plaintiff was to prosecute the action. The •amendment was clearly within section 954, Rev. Stat. [U. S. Comp. St. 1913, sec. 1591.]
“Nor do we think it was equivalent to the commencement of a new action, so as to render it subject .to the two-year limitation prescribed by section 6 of the Employers’ Liability Act. The change was in form rather
There was in tbe present case no amendment of tbe declaration, so as to enable us to sustain tbe right of action in this case under authority of tbe Wulf Case, supra. Clearly, then, tbe present case, as to tbe right of tbe plaintiff to maintain her suit in tbe character, capacity, and right in which she sued, must fall under and be governed by tbe authority of American Railroad Co. v. Birch, supra. There can be no doubt, upon tbe averments of plaintiff’s pleadings and tbe facts as developed on tbe trial, but that plaintiff’s bus-band, Bonham, was at tbe date of bis death engaged in interstate commerce within tbe meaning of tbe Employers ’ Liability Act, as that act was construed by tbe supreme court of tbe United States in Martin Pedersen v. Delaware, Lackawanna & Western R. Co.,
“It is true, the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to he cognizant of the enactment of the Employers ’ Liability Act, and to know that, with respect to the responsibility of interstate carriers hy railroad to their employees injured in such commerce after its enactment, it had the effect of superseding State laws upon the subject” — citing cases already heretofore appearing in the quotation of this part of the opinion.
Therefore we think the question was made hy the motion for a peremptory instruction, and was called to the attention of the trial court by the motion for a new trial, which complained of the» action of the trial court in its failure to grant the peremptory instruction. Aside from all this, under the authority of American R. Co. v. Birch, supra, the record here presents a fatal lack of a party absolutely indispensable to the validity of the judgment, and of course it results that the judgment must be reversed, and the cause