62 Colo. 492 | Colo. | 1917
delivered the opinion of the court.
Defendant in error, hereinafter referred to as plaintiff, recovered a judgment in damages against plaintiff in error on. account of the death of her husband, George D. Wilson. The complaint alleged that defendant was a Colorado corporation and owned and operated a railroad, “in and through the State of Colorado”; that on the 6th day of October, 1912, it was engaged in building a temporary or “shoofly’-’ track around a freight wreck on its road, near a designated station in this state, and, in the construction thereof, placed a quantity of giant powder upon the surface of two large rocks, approximately one hundred and forty-eight feet apart; on the line of the temporary track, and carelessly, recklessly and negligently, without giving proper notice of its intention so to do, exploded the same; that plaintiff’s husband was at the time an employee of the defendant, and engaged in the performance and discharge of his duties as such employee, and was then and there, by one of such explosions, killed, without fault on his part; that plaintiff was dependent upon her husband for support, and by reason of his death was damaged in the sum of $5,000, for which she asked judgment with interest from the date of filing the complaint. The answer admitted the corporate existence of the defendant, the nature and character of its business, the relationship of plaintiff to deceased, and his employment by defendant as alleged in the com
At the close of the evidence defendant questioned the right of plaintiff to maintain the action and asked that the jury be instructed to the effect that if a cause of action existed under the facts and circumstances disclosed, it could be prosecuted only by the personal representative of deceased, and not by plaintiff in her individual capacity. The requested instruction was refused and, over the objection of the defendant, the cause submitted to the jury upon the theory that the state law controlled.
As no right of action existed at common law, in anyone, to recover damages for the death of a person resulting through the negligence of another — Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, Ann. Cas. 1914C, 176 — it is essential that the cause of action be based on some applicable statute. The complaint stated a cause of action under the state law, but there was a Federal statute — 35 Stat. 65 c. 149; 36 Stat. 291 c. 143 — relating to the liability of railroads when engaged in interstate commerce, for the death, through their negligence, of any of their employees, while engaged in such commerce, and it becomes necessary to determine which of these statutes is applicable to this case. The two statutes cover the same subject, are unlike in substantial respects, and cannot* occupy the same field. This has been settled by the Supreme Court of the United States in numerous decisions. Second Employers’ Liability Cases (Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. [N. S.] 44); Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. 638; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129,
“The third question, whether those regulations supersede the laws of the States in so far as the latter cover the same field finds its answer in the following extracts from the opinion of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, [4 L. Ed. 579] (p. 405): ‘If any one proposition could command the universal assent of mankind, we might expect it would be this: — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof, * * * shall be the supreme law of the land, ’ and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ’-anything in the constitution or laws of any State, to the contrary notwithstanding. ’
And particularly apposite is the repetition of that principle in Smith v. Alabama, 124 U. S. 465, 473:
‘The grant of power to Congress in the Constitution to regulate commerce with foreign nations and-among the several States, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the States. It follows that any legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.’
True, prior to the present act the laws of the. several States were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employees while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the States in the absence of action by Congress. Sherlock v. Alling, 93 U. S. 99 [23 L. Ed. 819]; Smith v. Alabama, 124 U. S. 465, 473, 480, 482 [8 Sup. Ct. 564, 31 L. Ed. 508]; Nashville, etc., Railway v. Alabama, 128 U. S. 96, 99 [9 Sup. Ct. 28, 32 L. Ed. 352]; Reid v. Colorado, 187 U. S. 137, 146 [23 Sup. Ct. 92, 47 L. Ed. 108]. The inaction of Congress, however, in no wise affected its power over the subject. The Lottawanna, 21 Wall. 558, 581 [22 L. Ed. 654]; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215 [5 Sup. Ct. 826, 29 L. Ed. 158]. And now that Congress has acted, the laws of the States, in so far as they cover tl|e
Within the sphere it operates, the Federal statute covers every actionable case of wrongful death of an employee; and within the sphere of its operation is necessarily paramount and exclusive. Therefore any regulation by the state, that in any material way conflicts with the paramount Federal law, is non-effective. The state statute gives a right of action for the death of the deceased to his “wife,” in the first instance, or, if he left none, or she failed to sue within one year after his death, then to certain designated relatives, and in the event of no such designated persons, then to the next of kin of the deceased as may be dependent upon him for support; and further provides that every such action may be maintained by any such person entitled to sue, for the use and benefit of the other or others entitled to sue, as well as for the plaintiff so suing, etc. §§ 2181, 2182, 2183, Chapter, 40 M. A. S., 1912. The Federal statute, however, covers, inter alia, the subject of the liability of common carriers by railroad, engaged in interstate commerce for the death of any of their employees while so engaged in such commerce by reason of “the negligence of any officers, agents or employes of such carrier, or by ■reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment of such railroad”; and gives a.right of action to recover damages therefor solely to the personal representative of such deceased employee. Therefore, if the facts of a
Under the Federal law the administrator or executor alone may maintain the action. This was directly ruled in St. Louis, etc., R. Co. v. Seale, supra, in the following language, page 158 [33 Sup. Ct. 652, 57 L. Ed. 1129; Ann. Cas. 1914C, 156] : “And if the Federal statute was applicable, the right of recovery, if any, was in the personal representative of the deceased, and no one else could maintain the action.” We must, therefore, ascertain whether the Federal statute was applicable under the facts of this case, and this depends upon whether the injuries which caused the death of the deceased were sustained while the company was engaged, and while he was employed by it, in interstate commerce. The pleadings in no wise affirmatively disclose that deceased was employed in interstate commerce, or that defendant was engaged in such commerce, nor are any facts alleged from which such employment or engagement can be inferred. The evidence, however, disclosed that the defendant was engaged in the business of interstate commerce, that the decedent was employed by it, and at the time of receiving the injuries resulting in his death, was discharging a duty devolving upon him as such employee by participating in the carrying on of that business. .It was to the effect that defendant was a common carrier operating a main line of railroad from Salt Lake City, Utah, to Denver, Colorado; that deceased had been employed by defendant for fifteen or sixteen years, and during three or four years immediately preceding his death was employed by it as a wrecker, or car repairer;
In the Pedersen case the party seeking to recover was carrying, from a work car to a bridge, some bolts or rivets which were to be used by him and others in repairing the bridge, the repair to consist in taking out an existing girder and inserting another. To reach the bridge it was necessary to pass over an intervening temporary bridge. These bridges were being regularly used both in intrastate and interstate commerce. While crossing the temporary bridge on his way to the other bridge,
That deceased was engaged in interstate commerce is not controverted by plaintiff, but the contention is that, as neither party in their pleadings set forth any facts to bring the case under the Federal statute, the defendant waived the objection that the plaintiff had no right to maintain the action. The contention is untenable. When the facts of a case, whether disclosed by the pleadings or the evidence, bring the Federal law into operation, such law is paramount, and when those facts developed in this case it disclosed a total absence of right on the part of the plaintiff to maintain the action. In this respect the case is much like St. Louis, etc., Ry. Co. v. Seale, supra, where the suit was brought under a state statute, but the testimony disclosed that the plaintiff was injured while engaged in interstate commerce. The court said: “When the evidence was adduced it developed that the real case was not controlled by the state statute but by the Federal statute. In short, the case
Under the facts of this case a suit brought by the personal representative of deceased would necessarily inure solely to the benefit of the widow and none other. Why then is she not the real party in interest, and under our code entitled to maintain the cause of action? The answer is obvious. The cause of action arises under, and is governed exclusively by the Federal Act which gives the right of action to the deceased’s personal representative, and not to his widow. While the act does not attempt to control state procedure, it, nevertheless, does
“But the words of the act will not yield to such a liberal construction. They are too clear to be other than strictly followed. They give an action for damages to the person injured, or, ‘in ease of his death, * * * to his or her personal representative.’ 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.’
But 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 yield. Even if we could say, as we cannot, that it is not a better provision than' to give the cause of action to those in relation to the deceased. In the present case it looks like a useless circumlocution to require an administration upon the deceased’s estate, but in many cases it might be much the simpler plan, and keep the controversy free from elements but those which relate to the cause of action. But we may presume that all contending considerations were taken into account and the purpose of Congress expressed in the language it used.”
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 estab
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. The judgment is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and Remanded.
Decision en banc.