117 P.2d 815 | N.M. | 1941
The complaint seeks damages for the alleged wrongful death of plaintiff's intestate, arising out of a collision of a truck driven by the deceased and one driven by an employee of the defendant. It affirmatively appears from the complaint that the defendant's truck was engaged in business as a common carrier at the time of the accident. The plaintiff is the administratrix of the estate of the decedent and sued as such.
A demurrer to the complaint appropriately challenged the plaintiff's right to sue as administratrix. The demurrer was sustained, the plaintiff refused to further plead and judgment was entered for the defendant.
The sole question in the case is whether a cause of action for death, caused by the negligence of the driver of a truck, while engaged as a common carrier, arises under the general statute relative to actions for death by wrongful act (Sections 36-102 et seq. Compilation 1929), or under the statute covering such actions where death arises from the negligence of any employee, "Whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any stage coach or other public conveyance." Section 36-101 Compilation 1929 Supplement 1938.
If the action was properly brought under the general statute, the administratrix was the proper party plaintiff, and the demurrer should have been overruled. If it should have been brought under the statute relative to deaths arising from the negligence of the driver of a car, or a stage coach, or other public conveyance, the only proper party plaintiff would have been the surviving wife, child, parent, brother or sister of the deceased, and the trial court correctly sustained the demurrer.
Section 36-101, Comp. 1929, as amended, controls actions for wrongful death alleged to have been caused by the negligence of a truck, while engaged as a common carrier.
Two questions are presented, viz.:
1. Is the applicability of the statute confined to means of transportation which were known at the time of its original enactment in 1882?
2. Does the doctrine of ejusdem generis restrict the applicability of the statute to passenger carrying conveyances?
These questions were answered in the negative by the Circuit Court of Appeals of the Tenth Circuit in the case of Cain v. Bowlby, 114 F.2d 519, decided September 3, 1940, writ of certiorari denied
Although this court is not bound by the decisions of Federal Courts, nevertheless, such decisions, particularly of courts of our own Circuit, are entitled to special consideration.
The opinion of the court was prepared by Circuit Judge Bratton. A dissenting opinion was filed by Circuit Judge Phillips. We shall consider and briefly discuss each of these opinions.
While the opinion of the Court delivered by Judge Bratton in our view, upon sound reasoning, announced the correct conclusion and needs no supporting argument, we find in circumstance and adjudications valuable support thereof.
We find the answer to the first question stated thus in the fourth syllabus to Cain v. Bowlby, supra: "Generally, in the construction of statutes, legislative enactments, in general and comprehensive terms, and prospective in operation, apply to persons, subjects, and businesses within their general purview and scope, though coming into existence after their passage, where the language fairly includes them." It is interesting to note that the Editorial Staff of West's in their Digest, Key number this headnote as "Statutes 234 1/2." It is significant that these editors digest our decision in State v. Butler,
Furthermore, Judge Bratton, in Cain v. Bowlby, referred to the case of Drolshagen v. Union Depot R. Co.,
"To our mind the purpose of this statute was to allow damages for the negligent acts of the servants managing, running, and controlling public conveyances.
"These conveyances may be such as are composed of steam engines and cars; they may be cars propelled by horse power; they may be cars propelled by electricity; they may be coaches propelled by horse power; they may be coaches propelled by steam or other power, as the automobile, so they be public conveyances. The statute uses the term `or any other public conveyance.' But we need not go even thus far. The statute says `whilst running, conducting or managing any locomotive, car or train of cars.' Notice the punctuation and connectives; analyze the sentence, supplying the omitted words, and we have: (1) `Whilst running, conducting or managing any locomotive.' (2) `Whilst running, conducting or managing any car.' (3) `Whilst running, conducting or managing any train of cars.' The motive power used in the locomotive is not limited to steam, nor is the method of running the car, or train of cars, limited to any particular means or motive power. It was no doubt couched in these general terms, when originally enacted, in view of our American progressiveness.
"If we are to construe the statute otherwise, we would have a singular situation. There is no question that a street car is a public conveyance. If we attach horses thereto and put on a driver, under another clause of the statute, we would have liability of the company, but according to contention of counsel for defendant, no liability, if we changed the propelling power to electricity. In other words we would have street railway companies liable at times and not liable at other times, if they changed their motive power. In our judgment the statute was intended to apply to public conveyances of whatever kind, as first hereinabove stated. The bench and bar of the state have proceeded upon that theory for these many years, and it remained for the act of 1905, to suggest to lawyers, for the first time, that street railways were not within the purview of the statute. This act of 1905 brings about several radical changes in the statute, among others street cars are specifically mentioned, but it does not necessarily follow from this fact that the statute *510
was not previously broad enough to cover such public conveyances. This change might have been suggested to the legislative mind, by the suggestion made by Valliant, J., in Drolshagen v. [Union Depot] Ry. Co.,
Since the Missouri decision last quoted employed the argument that the Missouri bench and bar had proceeded for many years upon the theory that the statute was intended to apply to public conveyances of whatever kind, this seems a good place to call attention to the fact that the bench and bar of this state have proceeded on that theory.
See Romero v. Atchison, T. S.F. Ry. Co.,
In Ickes v. Brimhall,
We revert to our consideration of the Missouri decisions to call attention to Drakesmith v. Ryan, Mo. App.,
"The burden of defendant's point is that the statute, as it originally stood, only embraced cases where the death had resulted from the negligence of the driver of any `stage coach, or other public conveyance'; that, by the subsequent addition of the words `automobile, motor car,' the Legislature did not intend to include every automobile or motorcar, but only such as would be consonant with the idea conveyed by the words `stage coach, or other public conveyance'; that a stagecoach was used to convey passengers; and that consequently the words `automobile, motor car, or other public conveyance,' as they now appear in the statute, must be held to refer to conveyances of passengers and not to conveyances of goods.
"We can not believe that there is any merit to this contention. Of course the term `other public conveyance,' following the words `stage coach, automobile, motor car,' is used in the ejusdem generis sense (Drolshagen v. Union Depot R. Co.,
In the dissenting opinion of Judge Phillips in Cain v. Bowlby, supra, relied upon by appellant, it is said: "I agree that the phrase `other public conveyance' is not limited to conveyances in use at the time the original statute was enacted, but it is my view that it should be limited to conveyances like or analogous to a stage coach." Citing Drolshagen v. Union Depot Ry. Co., Mo.Sup., supra.
Neither Higgins v. St. Louis S. Ry. Co., supra, nor Drakesmith v. Ryan, supra (both later Missouri decisions), were cited, and it seems quite possible that had these two cases been before the Circuit Court of Appeals, Judge Bratton would not have cited the Drolshagen case, even as deferentially as he did, and that Judge Phillips would not have employed it in support of his views.
From all of the foregoing it appears that the district court was not in error in sustaining the demurrer.
The judgment should be affirmed, and
It is so ordered.
BRICE, C.J., and ZINN, SADLER, and MABRY, JJ., concur. *512