William Wheeler Thornton.

A treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars online

. (page 33 of 102)
Online LibraryWilliam Wheeler ThorntonA treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars → online text (page 33 of 102)
Font size
QR-code for this ebook


110 Mo. App. 706: 85 S. W. Rep. 679.

"Willis, etc., Co. v. GmieU, 198
Rl. 313; 65 N. E. Rep. 74; Missouri,
etc., R. Co. V. Freeman (Tex. Civ.
App.) 73 S. W. Rep. 542.

» Swift A Co. V. Johnson, 138 Fed.
Rep. 867; Diller v. Cleveland, etc.,
R. Co. 34 Ind. App. 52; 72 N. E.
Rep. 271.

"There must appear some reason-
able expectation of pecuniary assist-
ance or support of which they have
been deprived." Michigan Central



R. Co. V. Vreeland, 227 U. S. 59,
33 Sup. Ct. 192; 57 L. Ed. 417.

» Cincinnati, N. 0. & T. P. Ry.
Co. V. Wilson, 157 Ky. 460; 163
S. W. 493; Kenney v. Seaboard Air
Line R. Co. 166 N. C. 566; 82
S. E. 968; McDonald v. Pittsburg,
etc.. R. Co. 144 Ind. 459; 43 N. E.
Rep. 447; Thomburgh v. American,
etc., Co. 141 Ind. 443; 40 N. E. Rep.
1062; Dickinson v. Northeastern R.
Co. 2 H. & C. 735; 33 L. J. Exch. 91;

9 L. T. (N. S.) 299; 12 W. R. 52;
Good V. Towns, 56 Vt. 410.

3<> Harkins v. Philadelphia, 15 Phila.
286. See MarshaU v. Wabash R. Co.
46 Fed. Rep. 269; Robinson v.
Georgia R., etc., Co. 117 Ga. 168;
43 S. E. Rep. 452; Runt v. Illinois,
etc., R. Co. 88 Miss. 575; 41 So. Rep.
1; McDonald v. Southern R. Co. 71
S. C. 352; 51 S. E. Rep. 138.

'^Muhl V. Southern M. R. Co.

10 Ohio St. 272.



Digitized by



Google



228



FEDERAL EMPLOYERS' LIABILITY ACT.



§163. Emancipated child. — The fact that the child of
the deceased father has been emancipated is no defense.'*
Nor is it a bar to the action that the child was not living
with the father at his death,** or its custody awarded to the
divorced wife.**

§ 164. Adopted child. — ^It has been held that an adopting
father could sue for the death of his adopted child,*^ and it
would seem that suit could be brought for the death of the
adopting father where such adopted child was the sole bene-
ficiary. Yet it has been held that such a child is not ''next
of kin."" But a child that had been merely given to the
deceased cannot be treated as a beneficiary, not being of
kin.»^

§ 166. PosthumouB child. — ^The action may be brought
for the benefit of a child en ventre sa mere at the time of its
father's death." Such a child is a "surviving child.""

§ 166. Beneficiaries must survive deceased— Complaint. —

If there be no person alive designated as a beneficiary by the
statute, then no action can be maintained. The survival of



"Mattock V. Williamsville, etc.,
R. Co. (Mo.) 96 8. W. Rep. 849.

"Gulla V. Lehigh, etc., Co. 28
Pa. Super. Ct. 11.

••Taylor v. San Antonio, etc.,
Co. 15 Tex. Civ. App. 344; 93
S. W. Rep. 674.

"Thornburgh v. American, etc.,
Co. 141 Ind. 443; 40 N. E. Rep.
1062.

"Heidcamp v. Jersey City, etc.,
R. Co. 69 N. J. L. 284; 65 Atl.
Rep. 239.

" Elwood St. Ry. Co. v. Cooper,
22 Ind. App. 459; 53 N. E. Rep.
1092; Elwood St. Ry. Co. v. Ross,
26 Ind. App. 258; 68 N. E. Rep.
635.



"State V. Soale, 36 Ind. App.
73; 74 N. E. Rep. 1111 (sale of
intoxicating liquors to the father,
resulting in his death ) ; Quinlen
V. Welch, 69 Hun, 584; 23 N. Y.
Supp. 963; Thelluson v. Wood-
ford, 4 Ves. 227; 11 Ves. 112.

"Nelson v. Galveston, etc., Ry.
Co. 78 Tex. 621; 14 S. W. Rep.
1021; Texas, etc., Ry. Co. v. Rob-
ertson, 82 Tex. 667; 17 S. W. Rep.
1041 ; The George and Richard, L.
R. Ad. & Ecc. 466; 24 L. T.
(N. S.) 717; 20 Weekly Rep. 246;
Galveston, etc., R. Co. v. Contreras,
31 Tex. Civ. App. 489; 73 S. W.
Rep. 1061.



Digitized by



Google



BENEFICIARIES.



229



a beneficiary is essential to the maintenance of the cause of
action/^ It is, therefore, essential for the administrator to
show that a person survived the deceased employe who was
then a beneficiary; and if he do not, his complaint or
declaration will be insufficient;*^ and if it do not contain an
allegation of that fact, the judgment will be subject to a
motion to arrest it.*"

§ 157. Existence of a beneficiary a jurisdictional fact. —

As the administrator can only wage a suit for the benefit



**Koening v. City of Covington
(Ky.), 17 S. W. Rep. 128; Cincin-
nati, etc., R. Co. V. Pratt, 92 Ky.
233; 17 S. W. Rep. 484; Ken-
tucky, etc., R. Co. V. McGinty, 12
Ky. L. Rep. 482 ; 14 S. W. Rep. 601 ;
Louisville, etc., R. Co. v. Coppage
(Ky.), 13 S. W. Rep. 1086; Ken-
tucky, etc., R. Co. V. Wainwright
(Ky.), 13 S. W. Rep. 438; Cin-
cinnati, etc., R. Co. V. Adam
(Ky.), 13 S. W. Rep. 428; Louis-
ville, etc., R. Co. V. Merriweather
(Ky.), 12 S. W. Rep. 935; Con-
ley V. Cincinnati, etc., R. Co.
(Ky.) 12 S. W. Rep. 764; Hen-
ning V. Louisville, etc., C!o. (Ky.)
12 S. W. Rep. 550; Wiltsie v.
Town of Linden, 77 Wis. 152; 46
N. W. Rep. 234; Woodward v.
Chicago, etc., R. Co. 23 Wis. 400;
Serensen v. Northern Pac. Ry. Co.
45 Fed. Rep. 407; Lilly v. Char-
lotte, etc., R. Co. 32 S. C. 142;
10 S. E. 932; Warren v. Engle-
hart, 13 Neb. 283; 13 N. W. Rep.
401; Conlin v. City of Charleston,
15 Rich. L. 201; Burlington, eto.,
R. Co. V. Crockett, 17 Neb. 570;
14 N. W. Rep. 219.

** Stewart v. Terre Haute, eto.,
R. Co. 103 Ind. 44; 2 S. E. Rep.
208; Chicago, etc., R. Co. v. La
Porte, 33 Ind. App. 691; 71 N. E.
Rep. 166; Lamphear v. Bucking-
ham, 33 Conn. 237; Indianapolis,



ete., R. Co. V. Keely, 23 Ind. 133;
Jeffersonville, ete., R. Co. v. Hen-
dricks, 41 Ind. 48; Chicago, ete.,
R. Co. V. Morris, 26 111. 400;
Quincy Coal Co, v. Hood, 77 111.
68; Conant v. Griffin, 48 111. 410;
Clore V. :McIntire, 120 Ind. 262;
22 N. E. Rep. 128; Missouri Pac.
Ry. Co. V. Barber, 44 Kan. 612;
24 Pac. Rep. 969; Safford v. Drew,
3 Duer. 627; (jeroux v. Graves,
62 Vt. 280; 19 Atl. Rep. 987;
Lucas V. New York, ete., R. CJo.
21 Barb. 245; Northern Pac. R.
Co. V. Ellison, 3 Wash. 225; 28
Pac. Rep. 233; Westeott v. Cen-
tral Vt. R. Co. 61 Vt. 638; 17
Atl. Rep. 745; Schwarz v. Judd,
28 Minn. 371; 10 N. W. Rep. 208;
East Tennessee, ete., Ry. 0>. v.
Lilly, 90 Tenn. 563; 18 S. W. Rep.
118; Barnum v. Chicago, etc., R.
Co. 30 Minn. 461; 16 N. W. Rep.
304.

*• Stewart v. Terre Haute, 103
Ind. 44; 2 N. E. Rep. 208.



Digitized by



Google



230 FEDERAL. EMPLOYERS* LIABILITY ACT.

of someone named in the statute, it follows that the exist*
ence of such a person is a jurisdictional fact, and must be
alleged and proven; and if it be not alleged^ the complaint
is demurrable where it appears that the action is one that
falls within the provisions of the Federal Statute. No pre-
sumption can cover over such an omission in the complaint
or declaration. As it must be alleged, so it must be proven.^
Not only is the existence of a beneficiary a jurisdictional
fact, but it is a necessary allegation that he was dependent
on the deceased for support, even the care of the widow,
child or parent. Thus where the beneficiary was a married
daughter, and the Texas Court of Appeals held that the
Federal ** Statute expressly authorized the suit to be brought
by the personal representative for the benefit of the sur-
viving wife and children of the deceased, irrespective of
whether they were dependent on him, or had the right to
expect pecuniary assistance from him," the Supreme Court
of the United States declared the construction to be erron-
eous, saying: **In a series of cases lately decided by this
court, the act in this respect has been construed as intended
only to compensate the surviving relative of such a deceased
for the actual pecuniary loss resulting to the particular
person or persons for whose benefit an action is given. The
recovery therefore must be limited to compensating those
relatives for whose benefit the administrator sues as are
shown to have sustained some pecuniary loss.''^

§ 158. Statute of Limitations. — The action must be
brought within two years after the death of the injured
person.* A state statute of limitations has no applicability

>Mel2ner v. Northern Pac. Ry. U. S. 145; 33 Sup. Ct. 224; 67 L.

Co. 46 Mont. 162; 127 Pac. 766; Ed. 456.

Thomas v. Chicaji^o, etc., R. Co. *Partee v. St. Louis, etc., R. Co.

202 Fed. 766; Ulinob Cent. R. Co. v. 204 Fed. 970; Goodwin v. Bodeau,

Stewart, 223 Fed. 30. etc., Co. 109 La. 1050; 34 So. 74;

' Gulf C. & S. F. R. Co. V. Mc- County v. Pacific, etc., Co. 68 N. J.

Ginnis, 228 U. S. 713; 33 Sup. Ct. L. 273; 53 Atl. 386; Staunton Coal

426; 57 L. Ed. 785, reversing (Tex. Co. v. Fischer, 119 HI. App. 284;

Civ. App.) 147 S. W. 1118; Michigan Dare v. Wabash, etc., R. Co. 119

Central R. Co. v. Vreeland, 227 U. S. HI. App. 256; Crape v. Syracuse,

59; 33 Sup. Ct. 417; 57 L. Ed. 192; 183 N. Y. 395; 76 N. E. 465; Winfree

American R. Co. v. Didricksen, 227 v. Northern Pac. Ry. Co. 173 Fed. 65.



Digitized by VjOOQIC



BENEFICIARIES. 231

to the case ;* and the time is not extended by the pendency
and dismissal of a former action as allowed by some codes
in the ordinary cases." The statute requiring the action to
be brought within two years is not, strictly speaking, a stat-
ute of limitations, which must be specially pleaded, but is
an absolute bar, not removable by any of the ordinary
exceptions of that statute.*' **This is not strictly a statute
of limitations,'' said the Supreme Court of North Carolina.
**It gives a right of action that would not otherwise exist.
• • • It must be accepted in all respects as the statute
gives it. Why the action was not brought within the time
does not appear, but any explanation in that respect would
be unavailing, as there is no saving clause as to the time
within which the action must be begun. "*• **The time
within which the suit must be brought," said Chief Justice
Waite, ** operates as a limitation of the liability itself as
created, and not of the remedy alone. It is a condition at-
tached to the right to sue at all." **The liability and the
remedy [in admiralty] are created by the same statutes, and
the limitations of the remedy are, therefore, to be treated as
limitations of the right."*'" It follows from those statements
that if the complaint shows the action was not brought
within the two years, it is demurrable.** No exception can
be alleged to excuse the delay,*® — as the defendant carrier
had agreed to employ the injured servant as a compensation
for his injuries.*** The statute provides that the action must
be "commenced within two years from the day the cause of

* Nichols V. Chesapeake & Ohio Ry. *« Taylor v. Cranberry, etc., Co.

Co. 195 Fed. 913. 94 N. C. 525; Best v. Town of Kings-

♦* Rodman v. Missouri Pac. Ry. ton, 106 N. C. 205; 10 S. E. Rep. 997.

Co. 65 Kan. 645; 70 Pac. Rep. 642; «The Harrisburg, 119 U. S. 199;

59 L. R. A. 704; Cavanagh v. Ocean, 7 Sup. Ct. Rep. 199; 30 L. Ed. 358,

etc., Co. 13 N. Y. Supp. 540; 9 N. reversing 15 Fed. Rep. 610.

Y. Supp. 198; 11 N. Y. Supp. 547; *« Eastern Ry. Co. v. EUis (Tex.

12 N. Y. Supp. 609; Boyd v. Clerk, Civ. App.) 153 S. W. 701; Hanna v.

8 Fed. Rep. 849. Jeflfersonville R. Co. 32 Ind. 113;

** Morrison v. Baltimore & Ohio Jeffersonville, etc., R. Co. v. Hend-

Ry. Co. 40 App. D. C. 391; Shannon ricks, 41 Ind. 48; George v. Chicago,

V. Boston & M. R. Co. (N. H.) 92 etc., R. Co. 51 Wis. 603; 8 N. W. Rep.

Atl, 167; Hill v. New Haven, 37 374.

Vt. 501; Landigan v. New York, etc., « Hill v. New Haven, 37 Vt. 501.

R. Co. 5 Civ. Proc. Rep. (N. Y.) »« Morrison v. Baltimore A Ohio

76; Bonnell v. Jowett, 24 Hun. 524. Ry. Co. 40 App. D. C. 391.



Digitized by VjOOQIC



232



FEDERAL EMPLOYERS' LIABILITY ACT.



action accrued/' and this excludes a state statute of limita-
tions.^^ Where the employee is instantly killed, the cause
of action accrues at once and the statute immediately begins
to run.**' In some states it has been held that the statute
does not begin to run until an administrator has been ap-
pointed;** but directly the opposite has also been held."
An amendment of the complaint may be made after the two
years have expired, if it does not state a new cause of
action.** An important question is presented where the in-
jured employee does not die because of his injuries until
some time after he has received them — a year, for instance.
Must the action be brought within two years from the date
of his injury or within two years from the date of his death t
A little consideration of this question will show that the suit
can be brought within two years after the death and that
the date of the injury is immaterial in this respect. While
the injured person was alive he could have no administrator,
nor could his parents, wife, children or next of kin depend-
ent upon him bring an action because of his injuries; and
if he brought the action he would be entitled to the damages
recovered and not they. Where the beneficiary brought the
action in his own name (which he could not do), and on
being appointed administrator, appeared and moved to be
substituted plaintiff in his administrative capacity, it was
held proper to do so, although more than two years had



*^ Shannon v. Boston db M. R.
Co. (N. H.) 92 Atl. 167.

»*Hanna v. Jeffersonville R. Co.
32 Ind. 113.

»* Andrews v. Hartford, etc., R.
Co. 34 Conn. 67; Shennan v. Western
Stage Co. 24 Iowa, 515; see Louis-
ville, etc., R. Co. V. Sanders, 86 Ky.
259; 5 S. W. Rep. 563.

»*Bixler v. Pennsylvania R. Co.
201 Fed. 553 (a decision under the
Federal Act); Fowlkes v. Nashville,
etc., R. Co. 5 Baxt. 663; 9 Heisk. 829;
see Bledsoe v. Stokes, 1 Baxt. 312,
and Flatley v. Memphis, etc., R. Co.
9 Heisk. 230.



"Missouri, etc., R. Co. v. Wulf,
226 U. S. 570; 33 Sup. a. 135; 57
L. Ed. 274 (distinguishing Union
Pac. R. Co. V. Wyler, 158 U. S. 285;
15 Sup. Ct. 817; 39 L. Ed. 983);
Eastern Ry. Co. v. Ellis (Tex. Civ.
App.) 153 S. W. 701; City of Brad-
ford v. Downs, 126 Pa. St. 622; 17
Atl. Rep. 884; JeflFersonville, etc.,
R. Co. V. Hendricks, 41 Ind. 48;
Kuhns V. Wisconsin, etc., Ry. Co.
76 Iowa 67; 40 N. W. Rep. 92;
Moody V. Pacific R. Co. 68 Mo. 470;
Daley v. Boston, etc., R. Co. 147
Mass. 101; 16 N. E. Rep. 690.



Digitized by



Google



BENEFICIARIES.



233



expired since the death of the deceased."* It necessarily
follows that the statute begins to run from the date of the
death of the injured person. But it has been held, upon
elaborate discussion, that the failure to bring the action
within two years was a defense that must be specially
pleaded, and if no plea to that effect be presented, the
defense is waived.*^^

§ 159. Who brings the action in case of death. — ^In case
of the death of the injured person before he brings an
action, only his personal representatives can bring the
action. Of course, personal representative means his ad-
ministrator or executor. The cause of action is given by
statute, and only the person to whom it is given can bring
the action to recover damages; and the statute has named
that personal representative or that person. Even though
there be no widow or husband and children or parents, and
no personal representative, the **next of kin'' cannot main-
tain the action." If the deceased has brought suit and
then dies, only his personal representatives can prosecute
it to judgment.

§160. Judgment recovered by deceased. — ^A judgment
recovered by the deceased during his lifetime because of his
injuries is a complete bar to a suit by his administrator to
recover for the beneficiaries,^® but the commencement merely
of an action is not.'®



••MiBBOuri, etc., R. Co. v. Wulf,
226 U. S. 570; 33 Sup. Ct. 135; 57
L. Ed. 274 (distinguiBhing Union
Pac. Ry. Co. v. Wyler, 168 U. S.
285; 15 Sup. a. 817; 39 L. Ed. 983);
Bbder v. Pennsylvania R. Co. 201
Fed. 553; Van Doran v. Pennsylvania
R. Co. 93 Fed. 266; 35 C. C. A. 282;
Han V. Louisville, etc., R. Co. 157
Fed. 464.

"Buraett V. Atlantic Coast Line,
(N. C); 79 Atl. 414 (a decision on the
Federal Act).



» Fithian v. St. Louis & S. F. Ry.
Co. 188 Fed. 842; Thompson v.
Wabash Ry. Co. 184 Fed. 654;
American R. Co. v. Birch, 32 U. S.
Sup. Ct. Rep. 603; De Rivera v.
Atchison, T. & S. F. Ry. Co. (Tex.
Civ. App.) 149 S. W. 223.

» Hecht v. Ohio, etc., R. Co. 132
Ind. 507; 32 N. E. 302; 64 Am. &
Eng. R. Cas. 75. See allusion to
this question in St. Louis, I. M. d: So.
Ry. Co. 35 Sup. Ct. 704, 707.

*<> International, etc., R. Co. v.
Kuehn, 70 Tex. 582; 8 S. W. 484.



Digitized by



Google



234



FEDERAL. EMPLOYERS* LIABILITY ACT.



§ 161. Costs. — ^The administrator is not liable personally
for the costs of the soit,^^^ but the estate he represents is
liable, if, at least, solvent.*^^



§162. Suit by poor person.— An injured person may
bring an action as a poor person, and may appeal any
judgment against him, without being required to prepay
fees or costs or for the printing of the record in the appel-
late court or give security therefor, before or after bringing
suit or action, upon making a showing to the court that he
is unable to pay the costs of the suit or action of a writ of
error or appeal, or to give security for them, and stating
''that he believes that he is entitled to the redress he seeks
by such suit or action on writ of error or appeal, and
setting forth briefly the nature of his alleged cause of action
or appeal."*"*

§ 163. Death of beneficiary. — ^If the beneficiary die, even
after suit brought, the suit abates.**^ And where an action
is brought for the widow who is the sole beneficiary and she
dies, an action cannot be thereafter prosecuted for the bene-
fit of the deceased's parent or next of kin dependent upon
him.*** But if there be two or more beneficiaries standing



"•Evans v. Newland, 34 Ind.
112; Kinney v. Central R. Co. 34
N. J. L. 273 ; see Hicks v, Barrett,
40 Ala. 291.

"' Chicago, etc., R. Co. v. Harsh-
man, 21 Ind. App. 23; 61 N. E.
Rep. 343.

iiTa This statute is set forth at
length in the Appendix A.

"*Dillier v. Cleveland, etc., R.
Co. 34 Ind. App. 52; 72 N. E,
Rep. 271 (disapproving of Jeffer-
sonville, etc., R. Co. v. Hendricks,



41 Ind. 48) ; Woodward v. Chi-
, cago, etc., R. Co. 23 Wis. 400;
Railroad v. Bean, 94 Tenn. 388;
29 S. W. Rep. 370; Railway Co.
V. Lilly, 90 Tenn. 563; 18 S. W.
Rep. 243; 49 Am. & Eng. R. Cas.
496; Chivers v. Rogers, 60 La.
Ann. 67; 23 So. Rep. 100; Saun-
ders v. Louisville, etc., R. Co. 40
C. C. A. 465; 111 Fed. Rep. 708;
Hennessey v. Bavarian, etc., Co.
145 Mo. 104; 46 S. W. Rep. 966.
"•Railroad Co. v. Bean, 8upr<i.



Digitized by



Google



BENEFICIARIES.



235



in the first or second order exclusively, and one die, the
action may be prosecuted for those living.*^®

§ 164. Declarations of deceased. — If the declarations of
the deceased formed a part of the res gestae, they are ad-
missible ;^^^ but if they do not form a part of the res gestae
they are not admissible.^**

§ 164a. Alien beneficiary. — ^A person residing abroad or
an alien beneficiary is entitled to the benefit of the statute,
and damages for his benefit may be recovered.***



"• Senn v. Southern Ry. Co. 124
Mo. 621; 28 S. W. Rep. 66. H an
admimatrator die, hia succeesor does
not bring the action. Hodges v.
Webber, 65 N. Y. App. Div. 170;
72 N. Y. Supp. 608.

"*BrowneIl v. Pacific R. Co. 47
Mo. 240; Fordyce v. McCouts, 51
Ark. 509; 11 S. W. Rep. 694; Little
Rock, etc., R. Co. v. Leverett, 48
Ark. 333; 3 S. W. Rep. 50; Rich-
mond, etc., Co. v. Hammond, 93
Ala. 181; 9 So. Rep. 577; Merkle
v. Bennington Tp. 58 Mich. 156;
24 N. W. Rep. 776; McKeigue v.
City of JanesviDe, 68 Wis. 50; 31
N. W. Rep. 298; Galveston v.



Barbour, 62 Tex. 172; Stockmann
V. Terre Haute, etc., R. Co. 15 Mo.
App. 503; EntwhisUe v. Feighner,
60 Mo. 214.

"* Pennoylyania R. Co. v. Long,
94 Ind. 250; City of Bradford v.
Downs, 126 Pa. St. 622; 17 AtL
Rep. 884; Louisville, etc., R. Co.
V. Berry, 2 Ind. App. 427; 28 N. E.
Rep. 714; contra, Perigo v. Chicago,
etc., R. Co. 55 Iowa, 326; 7 N. W.
Rep. 621; Lord v. Pueblo, etc., R.
Co. 12 Colo. 390; 21 Pac. Rep. 148.

i^'McGovem v. Philadelphia k
R. R. Co. 235 U. S. 387; 34 Sup.
Ct. — , reversing 209 Fed. 975;
— C. d A. — ; 6 N. C. C. — ; Bom-
boKs V. Minneapolis & St. L. R. Co.
(Minn.) 150 N. W. 385.



Digitized by



Google



CHAPTER IX.
DAMAGES.



SECTION

165. Caution to be observed in con-
struing statute before and
after amendment of 1910.
165a. Federal statute controls meas-
ure of damages.

Employee recovers actual but
not punitive damages.

Fatal injury before the amend-
ment of 1910 — Two distinct
liabililies.

Pecuniary damages only given
to beneficiary.

Pecuniary loss defined.

Rule for measurement of dam-
age differs according to re-
lation of beneficiaries.

Damage by way of wlaUum,

Minor child's damages.

Measure of damages.



166.
167.



168.

169.
170.



171.
172.
173.



BECTION

174. Use of annuity tables.

Interest.

Damages not part of estate.

Amount of damages — Illustra-
tions.

Contributoiy negligence — Re-
ducing the amount of recov-
ery.
178a. Instructions on contributory
negligence — Reducing dam-
ages otherwise recoverable.

Apportionment of damages
among the beneficiaries.

Distributing proceeds of judg-
ment.

Survival of cause of action.

Damages recoverable where
there is a survival of de-
ceased's right of action.



175.
176.
177.

178.



179.

180.

181.
182.



§ 166. Caution to be observed in cosBtniing statute be-
fore and after amendment of 1910. — Care must be observed
in examining the eases and in the construction of the Federal
Act to note the distinction introduced by the amendment of
1910, or where the death of the employee is instantaneous,
resulting in his cause of action not surviving or passing to
his personal representative.^

§ 166a. Federal statute controls measure of damages. —

The Federal statute controls the measure of damages when
it provides a different rule from that of the common law



» Carolina, C. & O. Ry. v. She-
waiter (Tenn.) 161 8. W. 1136;
The Corsair, 145 U. 8. 335; 12 Sup.
Ct. 949; 36 L. Ed. 727 (10 minutes
survival, no damages recoverable);
236



Kearney v. Boston & W. R. Co.
9 Cush. 108; Hollenbeck v. Berk-
shire R. Co. 9 Cush. 478; Haniford v.
Payne, 11 Bush, 380. See the recent
case of St. Louis, I. M. & So. Ry. Co.
V. Craft, 35 Sup. a. 704, 705.



Digitized by



Google



DAMAGES. 237

(probably not that of a state statute).' Thus a state statute
cannot limit the amount of the recovery.*

§ 166. Employee recovers actual but not punitive dam-
ages. — ^When the contributory negligence of the employee
is not involved, he recovers the actual damages he has suf-
fered by his injury, which the Supreme Court has declared
to be such damages as will ''compensate him for his ex-
pense, loss of time, suffering, and diminished earning
power.*'* He cannot recover punitive damages; for they
are recoverable only in case of a wanton injury; and the
statute covers only negligent injuries. So far as the em-
ployee is concerned it is not necessary to pursue the ques-
tion further; for the statute does not change the general
rule upon the amount of damages recoverable for an in-
jury,* except where contributory negligence is involved.

§167. Fatal injury before the amendment of 1910. —

Speaking of the statute as it was prior to the amendment
of 1910 providing for a survival of the deceased employee's
right of action, Justice Lurton said: *'We think the act
declares two distinct and independent liabilities, resting, of
course, upon the common foundation of a wrongful injury,
but based upon altogether different principles. It plainly
declares the liability of the carrier to its injured servant.
If he had survived he might have recovered such damages

* Louigyflle & N. R. Go. v. Stewart, ^Michigan Central R. Co. v. Vree-

156 Ky. 550; 161 S. W. 557; 163 S. land, 227 U. S. 59; 33 Sup. a. 192;

W. 755; Chesapeake & Ohio Ry. Co. 57 L. Ed. 417, roversing 189 Fed. 495;

T. Dwyer, 157 Ky. 500; 163 S. W. Bennett v. Southern Ry. Co. 98

762. S. C. 319; 79 S. E. 710; NashviUe,

» Devine v. Chicago, R. I. & P. Ry. C. & St. L. R. Co. 158 Ky. 88; 164

Co. 265 111. 641; 107 N. E. 596. S. W. 310; Nashville, C. & St. L. R.

•Die Federal Supreme Court has Co. v. Banks, 156 Ky. 609; 161 S. W.
declared that the object of the statute 654; Jones v. Kansas City So. Ry.
was "to abrogate the common law Co. (La.) 68 So. 401. It is error to
rule completely exonerating the car- leave to the jury the matter of limit-
rier from liability in such a case, and ing the damages without naming any
substitute a new rule confining the standard to which their action shall
exoneration to a proportionate part conform other than their own con-



Online LibraryWilliam Wheeler ThorntonA treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars → online text (page 33 of 102)