Mobile, Jackson & Kansas City Railroad v. Hicks

46 So. 360 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

On October 28, 1905, Ray Hicks, a section foreman on appellant’s railroad, was working with his crew at a point about two or three miles north of Decatur Junction, in Newton county. The crew had stopped for dinner, but were still on the track and near it, when a mixed passenger and freight train approached, Immediately behind the locomotive were several freight cars, and a passenger coach was on the back end of the train. The train was going north. Hicks and his crew were walking in the same direction; Hicks being further north than the rest of the crew, and on the east side of the track. He had stepped off a few feet as the train approached. About the fourth car from the locomotive, when it was at a point about two hundred and eighty feet from Hicks, left the track, and about four other cars were then derailed; two of them falling on the west side of the track, and three on the east side, on which Hr. Hicks was. The last derailed car seems to have remained on the cross-ties until it reached a point nearly opposite where Hicks was standing, and it then turned over, falling on Hicks and inflicting injuries from which he died in about three days. There were a passenger coach and a caboose in the train; the passenger coach being at the rear end, and the caboose immediately in front of the coach. These two cars were' filled with passengers on their way to a Baptist Association at Philadelphia, in Neshoba county. The coach and the caboose did not leave the track, and the passengers were unhurt.

It is shown by the testimony that the schedule fixed by this railroad, for its freight trains, was fifteen miles an hour; that it was a new road, and not ballasted, and hence necessarily rough; that this was the first train ever run over this road carrying passengers, and that the speed at which this first train was actually run was thirty to forty miles an hour; that the passengers were very much alarmed, at the excessive rate of speed, and were in great concern about it, just before the derailment occurred. We think'the testimony shows, with sufficient clearness, that this injury was due to the incompetency of the engineer, which would make the master itself liable, and the excessive rate of speed of this first passenger train over this new, unballasted, and rough road. There can be no reasonable controversy as to the injury being due to these two causes. The incompetency of the engineer is manifested by the very nature of the occurrence. “ Bes ipsa- loquitur ” fits it perfectly as showing his gross incompetency. Hicks was a young man about twenty-eight years of age, in good health, industrious, and of good habits. He left a widow, twenty-seven years old, and four children, from two to eight years of age. The jury returned a verdict for the plaintiff for $7,500, and it is from this judgment that this appeal is prosecuted.

Two suits were filed — one by Mrs. Hicks as administrate, and another by the widow and children. The administratrix bases her • claim upon the allegation that the wreck was caused by the negligence of the enginéer in charge of the locomotive running the train at an excessive rate of speed, and on the further fact that the said engineer carelessly, grossly, and recklessly, while the train was running at this dangerous and rapid rate of speed, suddenly checked the speed of the locomotive. This declaration sets out Hicks’ earning capacity at $100 per month, and that he was the sole support of his widow and children, and that he lingered for several days before he died in great agony. The declaration claimed $30,000 damages, and it is manifestly bottomed on § 193 of the Constitution of 1890. The second declaration, by Mrs. Hicks for herself and her children, proceeds upon the theory of the negligence of the defendant company in knowingly employing an inexperienced, unskillful, and reckless engineer, as the result of which the train was run at the excessive rate of speed, in view of the condition of the track; and, second, upon the negligence of the engineer, in that he suddenly and wantonly attempted to check the train, and upon the negligence of the defendant company in having improper and defective appliances, trucks of an improper gauge, so that the wheels did not properly fit the tracks, and flanges on the wheels of the first box car. which jumped the track which were worn, defective, and unsafe, and in not having good and sufficient brakes and brake shoes on the car which first jumped the track, so that its speed could be controlled, and in not having said car properly equipped with air brakes, etc. This declaration also claims $30,000 damages, and is bottomed, manifestly, on § 3559 of the Code of 1892, wbicb is a rescript of § 193 of the Constitution of 1890, and on ch. 65, p. 82, of the Laws of 1898, as explained later herein. We may say at once, and so dismiss this matter, that the cause on the testimony is bottomed chiefly, if not exclusively, upon the negligence of the master in having in its employ a thoroughly incompetent and reckless engineer, and upon the willful and reckless conduct of this engineer in running this first passenger coach over this new, rough, unballasted road at this excessive rate of speed.

The learned counsel for the. appellant set up six defenses, in briefs which we have never seen surpassed, either in ingenuity or profound ability, and which we direct the reporter to set out, together with the very able briefs of learned counsel for appellees, in full, in order that railroad attorneys -having cases of like kind hereafter may first read these briefs and know whether they should trouble this court with the suits of that sort which they may have in hand. There ought not to be repeated suits brought to this court by appeal bottomed on the same grounds. Once we have determined a cause, the principles in that cause settled ought to be decisive of all other causes of like nature; and it is because of the exceeding ability and the extreme thoroughness of the briefs of the learned counsel for the appellant, which present-, it seems to us, every possible phase that- could be given to a case like this, that we thus direct their full publication for the guidance of railroad counsel, and other counsel, in the future, where similar cases arise.

Taking up these defenses in the order in which they are presented, the first is that the injury was an accident, pure and simple. We cannot accept this view. There is nothing improbable, or which might not reasonably be foreseen as logically likely to happen, in the connection between negligence, such as here shown, and derailment. It is true that the railroad company could not possibly foresee what particular person might be hurt, or in what particular manner he might be hurt; but that is not determinative. The question is: Ought not the company reasonably to have foreseen that sending its first mixed passenger and freight train over this new, rough, unballasted road at a rate of speed nearly three times its schedule rate would necessarily result in derailment, or at least would most probably so result ? It is said in 21 Am. & Eng. Ency. of Law, at page 487, that: “ In order, however, that a party may be liable in negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” See, also, Wharton’s Law of Negligence (2d ed.), § 77, and Payne v. Georgetown Lbr. Co., 117 La., 983; 42 South., 475. The section foreman and all his crew are constantly near the tracks, working on them, repairing them, and looking after them in every way. These section crews are always at work on the track, or so near it that they are liable to be injured by the constantly passing trains at all hours of the day, and it would be a dangerous doctrine, indeed, to establish that persons thus situated, when injured by a passing train, are injured as the result of accident, pure and simple.

The second contention of learned counsel for appellant is because no evidence was offered in support of any allegation upon which the claims are based, except the one to the effect that the engineer was running at a dangerous rate of speed, and § 3559 of the Code of 1892, under which the suit by the administratrix was brought, is violative of the fourteenth amendment of the federal Constitution. Our first observation with respect to his contention is that it incorrectly states the facts in this: That this action by the administratrix is necessarily bottomed, not only on the negligence of the engineer in running at an excessively dangerous rate of speed, wantonly and willfully, but, as a necessary corollary of this, upon the negligence of the master in having in its employ this utterly incompetent engineer. We do not deem it necessary to say more than we have heretofore held in Ballard v. Cotton Oil Co., 81 Miss., 507; 34 South., 533; 62 L. R. A. 467; 95 Am. St. Rep., 476, and in other cases since, to show that the fourteenth amendment to the federal Constitution is not in any way violated by § 3559 of the Annotated Code of 1892, which was enacted with reference to railroad corporations, grounding liability in this class of causes on the inherently dangerous nature of their business in operating cars by the highly dangerous agency of steam. On the contrary, we follow the United States supreme court in repeated decisions, pointed out in the case of Ballard v. Cotton Oil Co., in maintaining the constitutionality of this statute relating to railroad corporations. We refer to that case, and the cases since, and with that dismiss this contention. It is certainly unnecessary to repeat what we have once so thoroughly and at such great length pointed out.

The third contention of learned counsel for the appellant is that “ it plainly appears that the deceased did not belong to that class of employes for whose benefit § 3559 of the Annotated Code of 1892 and § 193 of the state Constitution of 1890 were made.” Ingenuity and ability have both been exhausted in the effort to maintain this contention; but a close and careful analysis shows clearly that it is artificial and unsound. Perhaps the best answer of all to this contention that Hicks did not belong to a class of employes, the nature of whose employment exposed them to the inherent perils attending the operation of railroad trains, is the fact that he was killed by one of the cars composing the train. "Res ipsa loquitur” again suffices. It is useless to say that Hicks was exposed to no such peril, in the light of the fact that it was just such a peril which resulted in inflicting upon him death. He was killed by the running of the train. Really, the argument is not accurately stated in saying, that he was not exposed at all to such peril; but it is, exactly, that the peril was so remote, the danger so unusual, that the consequences to be apprehended from the peril could not readily be foreseen. This is the true gist of the argument presented by the learned counsel for the appellant, reduced to its genuine analysis. And, thus viewed, it is manifest that there is really no question of the construction of § 193 of the Constitution involved, but a mere question ¿rising under the ordinary general law of negligence, and we have already fully covered this in what we have above said. We may add to this the further statement that the verdict may be properly referred to the general presumption of negligence created by § 1985 of the Code of 1906, which is as follows: “ Injury to Persons or Property by Railroads Prima Facie Evidence of Want of Skill, etc. In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives, or cars of such company, shall be p'ima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employes of railroad companies.” The last clause of this section is an amendment of the previously existing law. In other words, Hicks was plainly one of the class of employes, under § 193, exposed, from the nature of his employment, to the perils attending the inherent danger of operating ráilroad cars. Whilst, at the same time, the verdict here is maintainable under the presumption created by this statute, it is very true, as counsel for appellant say, that it is not instances which are to be classified, but employments. Section 193 of the Constitution, nevertheless, protects the injured employe, not against what he himself is doing, but against what his eoemployes of certain kinds are doing. The inquiry is not whether he is at the time operating a train, and thus exposing other employes to a peril, but whether, in the discharge of his duty, he is where the negligence of certain coemployes operating the train may injure him. This is the construction we have given, to § 193 in the recent case of Bradford Construction Co. v. Heflin, 88 Miss., 362; 42 South., 174, and this construction is in harmony with the supreme courts in the states of Iowa, Kansas, Minnesota, and Missouri construing their employer’s liability statutes. In the case of Haden v. Sioux City, etc., Ry. Co., 92 Iowa, 227; 60 N. W., 537, the court said: “ It is true that plaintiff was not engaged in the operation of trains in the sense of being an employe on a train; but his work was along and on a track on which trains were operated, and had especial reference to train movements in the way of keeping the track in repair and in condition therefor. His work was of the hazardous kind contemplated by the statute.” See, particularly, the note to Jemming v. Great Northern Ry. Co., 96 Minn., 302; 104 N. W., 1079; 1 L. R. A. (N. S.), 696. It was held in Croll v. Atchison, etc., Ry. Co., 57 Kan., 548; 46 Pac. 976, that an employe was, within their statute, one who, while working on a ditch along the track, was struck by a piece of coal from the tender of a passing engine. In another case, to which we make special reference (Keatley v. I. C. R. R. Co., 94 Iowa, 685; 63 N. W., 560), it was held that an employe, standing on a derrick platform used in building a side wall, and killed by the wrecking of a train crossing an uncompleted bridge, was within the protection of the statute in that state. The decedent was a mere water boy, having nothing to do in the operation of the road, or in the building or repairing of the track. Yet he was exposed to the peril from derailment. See Keatley v. I. C. R. R., 103 Iowa, 283; 72 N. W. 545, and the other cases cited in the brief of learned counsel for the appellee. It may be remarked here that there is no contention, since there could be none, that Hicks was not in a different department of labor from that in which the crew of the passing train was.

The fifth contention of the learned counsel for the appellant is that the court gave an instruction for the plaintiffs and denied an instruction for the defendant upon the theory that the plaintiffs'were entitled to the benefit of the presumption created by § 1808 of the Annotated Code of 1892, which is § 1985 of the Code of 1906. We have had this section set out before in this opinion, and refer to it again here. It is perfectly obvious that the amendment to this section was intended, both by the commissioners, in the form in which they expressed it in the dummy code, and by the Legislature, in the somewhat different form in which they expressed it in the last clause of the section, to utterly abrogate the construction by this court of said section, as it appeared in § 1808 of the Annotated Code of 1892, in the Trotter case, 60 Miss., 442, the Short case, 69 Miss., 484; 13 South., 826, and the Humphries case, 93 Miss., 721; 36 South, 154. That erroneous construction of the statute, as it originally existed in the form of § 1808 of the Code of 1892, has been, by this legislative amendment, utterly abrogated. The Legislature was manifestly dissatisfied with the limitation ingrafted upon the plain language of § 1808 by this court in the eases named, and determined to frame a new amendment, which could not be pared away. The Code commissioners in the dummy code had amended the section (§ 1808 of the Annotated Code of 1892) so as to make this presumption attach in favor of all standing in “ contract relations ” to the railroad. The Legislature made an immaterial change, and extended said presumption to passengers and employes. It is perfectly idle, in the face of this plain declaration of the Legislature, to argue any further that employes and passengers are not to be given the benefit of this presumption. It is clear, however, in any possible view, that this particular employe, Hicks, was engaged in a different department of service from the employes on the train who caused his injury; not a fellow’ servant at all, and hence we think, under § 193 of the Constitution, he is clearly within the reason and spirit of this presumption, and entitled to its benefit, whatever may be the true construction, generally, of this section. So that in no event could the benefit of this presumption of the facts of this case be denied to this employe, Hicks, such as he was, and situated as he was, and injured under the circumstances under which he was injured.

The strongest argument made by the learned counsel for the appellant against allowing this section to extend the benefit of this presumption to all employes is that it might, in certain peculiar cases, result in extending the presumption to cases where the negligence presumed might be that of a fellow servant. This is not a sound construction of this statute. It would impute to the Legislature absolute folly to give it this construction, and this we must never do, if it can possibly be avoided. If the purpose of this amendment was to raise, in favor of an injured employe, the presumption that the negligence was the negligence of a fellow servant, this would result, instantly, in no liability; and if this purpose is attributed to the Legislature it would be convicted of the absurdity of creating a presumption of nonliability in the effort to create a presumption of liability. 'As well said by counsel for appellee: “ If, in order to avail of the presumption, it be necessary for the employe to show that the injury resulted from the negligent act of some employe in a different department of labor, or of some superior officer, etc., then the presumption would be entirely destroyed. It would be yielding to proof. There is never any need for a presumption after proof of liability is completed. Surely this court will not say that the Legislature meant that where an employe will take the burden of proof, and show that he was in fact injured by one of the excepted classes of fellow servants, he is entitled to the presumption; for the presumption would then be given after it was not needed, and could not have any application, for, as has often been held by this court, when the facts are known, presumptions are to be ignored. Of course, it is open to the railroad company always, when the presumption exists, to show that the negligence of a fellow servant was not embraced in § 193. In this case, in which we invoke the presumption, it was competent for the defendant to have shown that the negligence, in fact, was the negligence of a fellow servant, if that could have been shown; hut no such effort tvas made — no such defense Avas set up or pleaded.”

So far as concerns the point pressed, that there may be cases in Avhich an employe would be given the benefit of the presumption of negligence where on the disclosed evidence it would appear that the negligent employe was a fellow servant, it is sufficient to say that it is manifestly the duty of the railroad company, to make that shoAving itself, since it is defensive, and since, when made, it will end, not only presumptions, but the whole case of the plaintiff. And it is further to be said, on this precise point, that if there should ever occur the extreme case suggested by appellant’s counsel, in which the plaintiff, an employe, should stand upon the presumption of liability given by the statute, Avhen he had within his command the proof showing that the negligence in the given case was the. negligence of a fellow servant, and hence that there was no liability, then it is to be said, with respect to such extraordinary case — rarely ever possible to happen — that it is better, on the ground of public policy, that the presumption should he given the employe, even in that case, standing upon the presumption alone, without any testimony Avhatever, than that the railroad company should be released from possible liability on the presumption alone, when in nearly every possible case the company has itself .the completest and fullest knowledge of how the injury happened, and should produce it in exculpation of itself; and, second, that the danger suggested of a fraudulent employe’s recovering, on a presumption alone, Avhen he himself has in his power the production of the testimony shoiving hoiv the injury happened, and that it happened in a Avay exculpating the defendant, is far more fanciful than real, because of the obvious fact that it Avould always be in the easy poAver of the defendant company to put the plaintiff himself on the stand and compel him under oath, through the testimony within his power, to show the real truth as to hoAV the injury happened. It will never do, in the practical administration of justice, to minimize or pare aAvay the power and value of this presumption, bottomed on a great public policy, wise and wholesome, by fanciful conjectures as to what might, in some peculiar case, possibly take place. It is to what will generally, and usually, and ordinarily, happen, in the application of this presumption, that we should look, and not to the dimly possible occurrence of a fraudulent suit, such as suggested. Indeed, we dismiss this contention of appellant with the emphatic declaration that none of the difficulties in which the court has been involved, by the ill-considered announcements in the Trotter case, 60 Miss., 442; Short case, 69 Miss., 848; 13 South., 826, and the Humphries case, 83 Miss., 721; 36 South., 154, would ever have occurred if the court, disregarding the awkwardness of the language of the Legislature in § 1808 of the Annotated Code of 1892, and looking, as it ought to have looked, to the spirit and purpose and scope of the section, had held, as we now hold, that the statute was intended to establish a rule of prima facie evidence of liability on the part of the company itself in favor of those named in the statute. It should have been interpreted precisely as if it had been written thus: “Proof of injury inflicted by the running of locomotives or cars of such company shall be prima facie evidence of liability on the part of the company.” That was plainly the thought and the purpose dominating the statutes, and that purpose should have been given effect, and the awkwardness of the legislative language disregarded. To all which it may be added that, since the proof clearly shows the negligence of both the master and the engineer caused the injury, appellees were under no necessity of invoking this prsumption at all.

The sixth contention of the learned counsel for the appellant is that the court should have given a peremptory instruction for the appellant. This, of course, is untenable.

The last and most serious contention of the learned counsel for the appellant, No. 4 in the order as assigned, is that the two causes were improperly consolidated. This contention rests mainly upon the proposition that under § 193 of the Constitution, and under § 3559 of the Annotated Code of 1892, which is a mere rescript of said § 193 of the Constitution, no action could be brought on behalf of an employe who had been killed, except by his personal representative — that is to say, his executor or administrator, as held in the case of Hunter v. Railroad Co., 70 Miss., 471; 12 South., 482—and the argument of the learned counsel proceeds mainly upon the theory that the Hunter case is still the law. This is an entire misconception. The Hunter case was practically overruled in the Bussey case, 79 Miss., 597; 31 South., 212, and expressly overruled recently in the case of Y. & M. V. R. R. Co. v. Washington et al., 45 South., 614. In other words, it was perfectly competent, under § 193 of the Constitution, and, of course, under § 3559, Ann. Code 1892, for the widow and children — that is to say, the legal representatives — of TIicks to have brought the suit which they did bring here to recover what he was worth to them as a breadwinner. It would also have been competent for Mrs. Hicks to have brought a suit as administratrix, under the same sections, to recover the damages sustained by Hicks himself, but for the provision for but one suit in ch. 65, p. 82, acts of 1898, as shown hereinafter. Learned counsel for the appellant admit, in their second brief, that if the two suits were unnecessary, and the administratrix could have sued for all damages claimed in both suits, or if the widow and children could have sued for all such damages, then they are willing to concede that they were not prejudiced by the consolidation. This concession ends the controversy on this point, for there are two views, on either of which it is clear that not only were two suits unnecessary, but that only one could be instituted.

Now, as to the first of these views: When this suit was instituted, ch. 65, p. 82, of the Laws of 1898, now § 721, Code of 1906, was in full force. That chapter was as follows:

“ Section 1. Re it enacted by the Legislature of the state of Mississippi, that the act of the Legislature of said state, approved March 23, 1896, being entitled “An act to amend § 633 of the Annotated Code of 1892, as to actions causing death, and exempting damages, recovered for personal injuries,” be amended so as to read as follows:

“Chapter 86.‘ — An act to amend § 663 of the Annotated Code of 1892, as to actions for causing death, and exempting damages recovered for personal injuries.

“ Section 1. Be it enacted by the Legislature of the state of Mississippi, that § 663 of the Annotated Code of 1892 be so amended as to read as follows: Whenever the death of any person shall be caused by any real, wrongful or negligent act, or omission, or by such unsafe machinery, way or appliances, as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow and children, or both, or husband, or mother, or sister, or brother, the person or corporation, or both, that would have been liable if death had not ensued, and the representative of such person shall be liable for damages, notwithstanding the death, and the fact that death is instantaneous shall, in no case, affect the right of recovery. The action for such damages may be brought in the name of the widow for the death of the husband, or-by the husband for the death of the wife, or by a parent for the death of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a .brother, or by a sister for the death of á sister, or by a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one suit for the same death, which suit shall enure for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. In such action the party or parties suing shall recover such damages as the jury may, taking into consideration all damages of every kind to the decedent and all damages of every kind to any and all parties interested, in the suit. Executors or administrators shall not sue for damages for injury causing death except as below provided; but every such action shall be commenced within one year after the death of such deceased person.

“ Sec. 2. This act shall apply to all personal injuries of servants or employes received in the service or business of the master or employer, where such injuries result in death.

“ Sec. 3. Damages recovered under the provisions of this act shall not be subject to the payment of the debts or liabilities of the deceased, and such damages shall be distributed as follows: Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; if the deceased has no husband nor wife, the damages shall be distributed equally to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or to such of them as the deceased may have living at his or her death. If the deceased have neither husband or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representatives, subject to debts and general distribution, and the executor may sue for and recover such damages on the same terms as are prescribed for recovery by the next of kin in sec. 1 of this act, and the fact that deceased was instantly killed, shall not affect the right of the legal representatives to recover.

“'Sec. 4. All suits pending in any court at the time of the approval of this act and which were also pending at the time said chapter went into effect, shall not be affected by any of its provisions; but all such suits shall be conducted and concluded under the laws in force prior to the time of the approval of said act, on March 23, 1896.

“ Approved January 27, 1898.”

This chapter has been recently construed by us in the case of Pickens v. I. C. R. R. Co., 45 South., 868, in a case in which the suit was brought to recover damages for the death of one not an employe; that is to say, under our statutory provisions embodying the doctrine of Lord Campbell’s act, which had their final expression at that time, and when this present suit was brought, in said ch. 65, p. 82, of the Laws of 1898. In that case we said: “ It is apparent from the act cited that there can be but one cause of action for any injury producing the death of any party. This statute was enacted for the purpose of uniting in one suit all causes of action which might have heretofore existed for any injury whereby the death of the party was produced. Whatever may have been the common-law rule upon this subject, this is now the rule in this state under the act and section above quoted. The law expressly provides that, ‘ whenever the death of any person shall be caused by any real, wrongful or negligent act,’ etc., ‘ as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof,’ etc., and then proceeds to say that ‘ in such action ’— that is to say, in an action for damage for the death of a person caused by a wrongful or negligent act, etc. — ‘ the party or parties shall recover such damage as the jury may, taking into consideration all damage of every kind to the decedent and all damage of every kind to any and all parties interested in the suit.’ This chapter provides expressly that there shall be one suit, and that in that suit there shall be but one recovery, and that recovery shall be for all damages of every kind to the decedent and all damage of every kind to any and all parties interested in the suit.”

That act further provided, we may now add, that there might also be an action brought by the personal representative — that is to say,' the executor or administrator — of the deceased, not an employe, and authorizes the recovery by the personal representative to be for all the damages both to the decedent and to the widow and children; that is to say, authorizes the personal representative to recover for the legal representatives. But it added two restrictions in respect to this suit by the personal representative: First, that suit could never be brought conjointly with the suit by the widow or other legal representatives, but could only be brought when there were no next kin at all; and, secondly, the act provided that in that case the amount recovered by the personal representative should be subject to debts. In other words, the cause of action given to the personal representative, so far as recovery is concerned, is coexten'sive in all respects with that given to the legal representative; and that act further provided that the damage for injury and death, recovered, should be exempt to the wife and other legal representatives, and should be distributed as specified in the statute, and, finally — and this is a most important provision — the second section of the act provided expressly as follows: “ This act shall apply to all personal injuries of servants or employes received in the service or business of the.master or employer, where such injuries result in death.” Now, the first view which we have above referred to is this: That this ch. 65, with all of its rights and remedies- — the last expression, at the time of the institution of this suit, of the doctrine of Lord Campbell’s act, intended for those not employes — is by § 193 of the Constitution itself made directly applicable to and available by the employes empowered by said § 193 to recover in the states of case therein named. This view was first presented to this court by Messrs. Green & Green, attorneys of record for appellee, in a brief of surpassing ability which ought to be in the hands of every lawyer in the state. In the case of I. C. R. R. Co. v. Fannie Williams et al., recently pending here, but compromised, we gave the view presented by that brief the most careful consideration at that time, and would then have announced our concurrence in it had the case not been settled. We now quote from that brief the following clear statement of this view, which we now adopt as the true construction of § 193:

“ ‘ Every employe, of a railroad corporation shall have the same rights and remedies for an injury suffered by him by the act or omission of said corporation or its employes as are allowed by law to other persons ■ not employes ’ in the specified cases. ‘ Where death ensues for an injury to an employe, the legal or personal representatives of the person injured shall have the same right and remedies as are allowed by law to such representatives of other persons, . . . and this section shall not be construed to deprive an employe of a corporation, or his legal or personal representative, of any right or remedy that he now has by the law of the land. The Legislature may extend the remedies herein provided for to any other class of employes.’ By the first paragraph injured fellow servants, who live, in the specified cases, are to have the same rights and remedies as are allowed by law to persons not employes. This places fellow servants, in the specified cases, in the same legal position as if they were not fellow servants, but were other persons not employes. Their rights and remedies are to be the same ‘ as are allowed by law.’ ■ Not those-now allowed by law only; but their rights and remedies are to follow and be governed by the rights and remedies by law applicable to such other persons. If the rights and remedies of other persons are extended or restricted by law, then those of fellow servants in the specified cases, and in the same degree, are to be extended or restricted. The rights and remedies of both are to be such ‘ as are allowed by law.’ There is no limitation in this language upon the power of the Legislature to extend the rights and remedies of persons not employes. The legislative power is unrestrained in this regard. But if there is allowed by the Legislature, by law, any -other rights and remedies, then those of fellow servants follow; for they are to ‘ have the same rights and remedies as are allowed by law to persons not employes.’ The power of the Legislature to extend the rights and remedies of employes, even irrespective of other persons, was held to exist in Bussey’s case, 79 Miss., 579; 31 South., 212. The classification of the rights and remedies of fellow servants in the specified cases, and of other persons, for torts, is thus made the same; and after thus made the same by the Constitution, it would be beyond the power of the Legislature to create a new right or remedy for other persons, in this regard, that would not extend to fellow servants in the specified cases. The Legislature would have power, ioties quoties, to change, by enlargement or restriction, the rights and remedies of persons not employes for injuries; and if it does change them,- then, as a constitutional sequence, those of fellow servants in the specified cases are changed accordingly. Therefore, when the rights of other ‘persons were changed by the enlargement of the rights under § 1510 (Lord Campbell’s act), Code 1880, by ch. 65, p. 82, Laws 1898, by the mandate of the Constitution those of fellow servants in the specified cases were enlarged accordingly. This would be true, whether the fellow servants were referred to in the act or not; for the creation of a right or remedy for other persons not employes, by this self-executing provision of the Constitution, ipso facto, extends to fellow servants in the specified eases.

“ But the Legislature, mindful of this mandate, and to exclude a conclusion, enacted § 2, ch. 65, p. 83, extending the act to employes of corporations. In this aspect it is immaterial that the Legislature undertook to amend § 193 by ch. 66, p. 84, Laws 1898, and whether ch. 66, p. 84, Laws 1898, is constitutional as class legislation or not. Chapter 65, p. 82, Laws 1898, propria vigore, became a part of the right and remedies ‘ allowed by law’ to other persons, and hence to fellow servants in the specified eases; and ch. 66, p. 84, so far as the rights and remedies allowed by ch. 65, p. 82, and § 193, were concerned, was superfluous and unnecessary. The result of the Constitution giving the same rights and remedies to fellow servants in the specified cases as to persons not employes is that the common-law remedies for injuries to persons not employes, as well as any legislative rights or remedies created in behalf of said other persons^ would in the specified eases be extended to and be allowed to fellow servants. ‘ As are allowed by law ’ means by common or statutory law. It is to be noted that it does not confine its beneficent effects (made necessary as constitutional legislation because of the many failures of the Legislature to act—Bussey's case, 79 Miss., 607; 31 South., 212) to such rights and remedies as are now allowed by law to this class of persons not employes. To show that it was not intended to take away the rights and remedies of any employe then existing, but to extend the same, a subsequent provision of the section declares: ‘ And this section shall not be construed to deprive any employe of a corporation, or his legal or personal representative, of any right or remedy that he now has by the law of the land.’ It was necessary to enact § 193, for the then settled construction of § 1510, Rev. Code 1880 (Lord Campbell’s act), was that it did not affect the fellow servant rule. 8 Am. & Eng. Ency. Law (2d ed.), 867.

“ The next paragraph of § 193, after defining the specified cases in which the fellow servant does not assume the risk of the negligence of fellow servants, nor of defective machinery or appliances, provides: ‘ Where death ensues from an injury to an employe, the legal or personal representatives of the person injured shall have the same right and remedies as are allowed by law/to such representatives of other persons.’ Thus the legislation applicable to persons not employes where death results from an injury, becomes extended to the legal or personal representatives of an employe. The first clause of § 193, supra, deals with the rights and remedies of employes where death ensues from the injury. At common law there was no cause of action for a death, and no survival of a cause of action for a tort resulting in death. Railroad v. Pendergrass, 69 Miss., 430, 431; 12 South., 954. The Legislature, following Lord Campbell’s act, had enacted § § 1510, 2078, and 2079, Rev. Code (1880 (§ § 663, 1916, and 1917, Ann. Code 1892), for ‘ other reasons,’ and had -unlimited power to make extensions or restrictions of legislation on this subject. The constitutional intent was that whatever legislation, whether it affected the rights or the remedies, might be enacted for other persons than employes, should be applicable to employes where death ensued. The constitutional convention, as said in the Bussey case, took this legislation in hand with a view to secure the legal or personal representative of employes of corporations the same rights and remedies for injuries resulting in death ‘ as are allowed by law to such representatives of other persons.’ They were all to be classed alike, and the Legislature was not allowed ‘ to make fish of one and fowl of another.’ As stated supra, commenting on this identical language in the first clause, the Legislature was not limited or restricted in its power to legislate on this subject as to other persons; but the mandate was that whatever right or remedy is allowed by law to the legal or personal representatives of persons not employes, where death ensues, shall extend to employes. This is a constitutional rider upon all legislation, present and future, on this subject-matter.”

Section 193, we may now point out, did not define what the rights or what the remedies were which it provided for the particular employe if he lived, or for his personal or legal representatives if he was killed. The only attempt at definition of either these rights or these remedies is to be found in this phrase: “ Every employe of a railroad corporation shall have the same rights and remedies ... as are allowed by law to other persons not employes ”— and further down in the said section in these words: “ Legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons.” “ The same rights and remedies,” says the section, “ as are allowed by law to persons not employes,” and to the legal and personal representatives of persons not employes. “ The same rights and remedies.” What rights and remedies ? The same as are allowed by law to persons not employes, etc. In other words,.when you come to ascertain what the rights and what the remedies precisely are, you are to look for the legislation which allows persons not employes to sue; and, having found that, sec. 193, proprio vigore, is self-executing fashion, ipso facto makes all such rights and remedies, then or thereafter, allowed by law, available to and usable by 'the particular employes empowered to sue by sec. 193 in the states of case therein named. Nor is there any well-founded objection against this view to be worked out of the last clause of sec. 193 of the Constitution, which provides that “ the Legislature may extend the remedies herein provided for to any other class of employes,” because, obviously, it is thereby meant that, when the Legislature makes such extention to other classes of employes, the extension shall cany to such other class or classes of employes the rights and remedies secured by sec. 193 in the same manner and to the same extent precisely that sec. 193 itself gave the particular employes of railroad corporations named in it.

Nor is there any merit in the objection made by the learned counsel for the appellant that this view is in conflict with the case of Bussey v. Railroad Co., 79 Miss., 597; 31 South., 212. On the contrary, as said in the brief of Messrs. Green & Green, attorneys, from which we have so liberally quoted: “ In all of its essential elements this interpretation is supported in the Bussey case and in the Ballard case. In Y. & M. V. R. R. Co. v. Schraag, 84 Miss., 125; 36 South., 193, there is favorable support found for this interpretation of chapter 65, p. 82, Laws 1898.” This statement of the eminent counsel is strictly correct. The Bussey case was dealing with a wholly different phase of sec. 193 from that here involved. The specific object of that decision was to discriminate carefully between the provisions of our law embodying the doctrine of Lord Campbell’s act and the provisions of sec. 193, and the subsequent statutes seeking to carry out its purpose, which related alone to the rights and remedies of the special employes of railroad corporations named in it. We. held in that case that all the provisions of law embodying Lord Campbell’s act related to those not employes, and that sec. 193 and its consequent statutes related to certain particular employes named in said section. We carefully pointed out that these two schemes, one wholly statutory and the other constitutional and statutory, were .wholly distinct from and independent of each other, so far as their origin, their history, and their purpose were concerned; but it does not at all logically follow, from this pointing out of the difference between the two schemes, that sec. 193 of the Constitution could not and did not, ipso facto, provide, without any legislation whatever, that all legislation affecting the rights and remedies of those not employes, whether enlarging or restricting those rights and remedies, should immediately upon the passage of such legislation, at the time of the adoption of the Constitution or thereafter, by virtue alone of this very section of the Constitution, inure to and become available by the class or classes of employes named in- said sec. 193, or thereafter added, in pursuance of its last clause, by the Legislature. The difference in the origin of the two schemes, the difference in their history, and the difference in the nature of the actions provided by them, respectively, in no sort of way prevented the Constitution from providing that all the remedies and rights given to persons not employes should become instantly available by and inure to that class of employes embraced either in said sec. 193 itself or in any subsequent legislation extending the rights and remedies to other employes, as provided in the last clause of said section. It follows, inexorably, from the phrase “ same rights and same remedies,” that there never can be a time, while see. 193 of the Constitution is in force, when the rights and remedies given to those not employes shall be in any wise different from the rights and remedies conferred by sec. 193 of the Constitution on the employes named therein. It must be clear from this analysis of sec. 193 of the Constitution that there is nothing in the point as to the impropriety of the consolidation of the two suits. It is simply to be said that the suit by the administratrix was entirely superfluous and improper, and the learned counsel for appellant very properly admit that in this view they cannot claim that the consolidation prejudicially affected appellant in any wise.

We pass now to the second view, on which it is seen that only one suit could be instituted — -'that by the widow or the widow and children — and that that suit was to be instituted under and governed in all respects by this same ch. 65, p. 82, Laws 1898, and that view is this: That sec. 2 of said ch. 65 expressly declared that that act should apply to all personal injuries that servants or employes received in the service or business of the master or employer, where such injuries resulted in death. In other words, this sec. 2, ch. 65, p. 83, which was in force when this suit was brought, entirely independently of sec. 193, attempted to confer expressly all the benefit of ch. 65 as to rights and as to remedies upon the employes of the master where the injuries, as here, resulted in death. We expressly pointed out in the Bussey case, 79 Miss., 609, 31 South., 212, that the language of sec. 2 could not be read as blank paper, and held that it expressly applied the principle of Lord Campbell’s act to empolyes where the injuries resulted in death. If, therefore, it could properly be said, as manifestly it cannot, that the construction we have given sec. 193 on this subject in the first view presented above was erroneous, then undoubtedly this sec. 2 expressly clothed this employe of this master with all the remedies and all the rights provided by ch. 65, p. 82, of the Laws 1898. If it be said that this was taking the last expression of the principles of Lord Campbell’s act formulated in said ch. 65, p. 82, relating to persons not employes, and clothing persons who were employes with the same rights and the same remedies, the answer is, “ Ita lex scripta estEven thus § 2, ch. 65, p. 83, is written and that is for us the end of the law on the subject. It is doubtless true that tbe legislative dealing with these two different schemes — Lord Campbell’s act for those not employes, and sec. 193 of the Constitution and the statutes in pursuance thereof for certain employes named in sec. 193 — has been characterized by the most absurd and irrational confusion of the two statutes one with the other. For example, § 663 of the Revised Code of 1892 was the expression in that Code of Lord Campbell’s act relating to persons not employes, and yet ch. 66, p. 84, of the Laws of 1898, which related exclusively to the employes named in sec. 193 of the Constitution, is a copy — an actual copy — of said § 663 of the Ann. Code of 1892, relating alone to persons who were not employes. Again, this very ch. 66 of the Laws of 1898 contains the exact words, as we have said, of § 1510 of the Revised Code of 1880 (§ 663 of the Ann. Code of 1892) as to the person in whose name the suit is to be brought, as to the measure of damages, and as to the distribution of the damages, and these words are interpolated in said ch. 66 between the words of § 3559, Ann. Code 1892, as copied from sec. 193 of the Constitution. Manifestly, the Legislature had no proper conception of the subject-matter of these two different schemes of legislation with which they were dealing, and it is no particular ground of criticism of the Legislature, when the intricacy and difficulties of the subject are considered. But it must certainly be ground for great satisfaction that under the first view which we have above set out, the interpretation which makes sec. 193 self-executing, it will never be, whilst that section remains in force, within the power of the Legislature, by any legislation as to employes, to affect in one way or the other their rights or their remedies, but that those rights and those remedies shall remain, whilst that section of the Constitution lasts, the same exactly, whether restricted or enlarged, as the rights and remedies allowed by law to those- not employes.

There is just one other criticism about the Bussey case made by Messrs. Green & Green in their masterly brief, hereinbefore mentioned, which we care to notice, in order to point out the fallacy involved in the criticism. It is said by them in that brief that it was inaccurate to say, as we did in the Bussey case, that sec. 193 of the Constitution created a new cause of action. We said this, not meaning thereby that there never had been a time in the history of our jurisprudence when the cause of action provided by see. 193 had not existed; for, manifestly, it had existed at the common law and remained the rule until Lord Abinger in 1837 invented, as counsel correctly say, the fellow servant doctrine, in Priestly v. Fowler, 3 Mees. & W., 1, and in this country until that case was followed, in 1838, by Murray v. S. C. R. R. Co., 1 McMul. (S. C.), 385; 36 Am. Dec., 268, and in 1842 by Farwell v. Boston R. R. Co., 4 Metc., 49; 38 Am. Dec., 339, and in 1873 in this State by Railroad Co. v. Hughes, 49 Miss., 258. But during that long sweep of time from 1837 to 1890 the causes of action provided for in sec. 193 had been abolished and did not exist at all in the jurisprudence of England or America; and what we meant in saying that sec. 193 created these new causes of action was that they were, for the first time, by that section made causes of action, and it was proper enough to speak, therefore, of sec. 193 as creating these causes of action in that sense. Causes of action which had existed at the common law, and which had been abolished since 1837 in England and since 1838 in this country, and which had never had in the United States any existence since 1838, may certainly, with all propriety, be spoken of as being created, or, if that term pleases better, re-created, by sec. 193 of the Constitution.

We have given to this cause the most painstaking and protracted and profound consideration. It has engaged the solicitude of each member of the court because of the tremendous scope and sweep of the principles involved in its decision, and we are, after the fullest consideration, thoroughly satisfied of the correctness of all the views which we have in this opinion announced.

It follows that the judgment of the court below was correct, and it is therefore affirmed.

Affirmed.

Case Details

Case Name: Mobile, Jackson & Kansas City Railroad v. Hicks

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1907

Citation: 46 So. 360

Court Abbreviation: Miss.