SLOSS-SHEFFIELD STEEL & IRON CO. v. DRANE, 160 F. 780

McCORMICK, Circuit Judge. This was a suit by Polk Drane, the defendant in error, to recover damages for the death of his minor son, Carleton Drane, who was alleged to have been employed by the defendant without the plaintiff’s knowledge or consent. Each count of the complaint alleges that the minor was employed without the knowledge and consent of the father, and put to work in a dangerous place. There was a judgment in favor of the plaintiff.

The plaintiff in error assigns as errors the action of the trial court in overruling demurrers to the complaint, in sustaining demurrers to pleas interposed by the defendant, in declining to give the affirmative charge requested by the defendant, and in giving certain instructions to the jury, to which exceptions were reserved by the defendant. The demurrers to the complaint were properly overruled.

If the trial court erred in his action on the demurrers to any of the pleas (which we do not affirm), we are satisfied from our view of the whole case that it was an error without injury, as the pleas stricken were not supported by any proof, and the record affirmatively shows that all of the evidence that could have been offered or did exist was admitted under the general issue. On the issue as to whether the minor was a member of the plaintiff’s family up to the time the injuries were received, the jury were properly instructed, and the proof on this issue was sufficient to sustain their verdict.

The trial court did not err in declining to give the affirmative charge requested by .the defendant. Whether it erred in giving certain instructions to the jury touching the measure of damages, to which exceptions were reserved by the defendant, is a question which has received studious consideration, and calls for ampler treatment. The statutes of Alabama provide: “A fattier, or (in certain eases) the mother, may sue for an injury to a minor child, a member of the family.”

Section 28, Code 1896. “When the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents, the father, or the mother, in the cases mentioned in the preceding section, or the personal representative of such minor, may sue and recover such damages as the jury may assess; hut a suit by the father or mother in sneh case is a bar to a suit by the personal representative.”

Section 26. “A personal representative may maintain an action, and recover such damages as the jury may assess for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death; * * * and the damages recovered are uot subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution.”

Section 27, Code 1896 The Legislature of Alabama passed

an act “to prevent homicides,” approved February 21, 1860, which provided: “That, when the death of a person is unlawfully caused by another, the personal representative of the deceased may maintain an action against the latter at any tipe within two years thereafter, and may recover such sum as the jury deem just, and the' amount so recovered shall be distributed as the personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased.” Daws 1859-60, p. 42.

The author of the Revised Code, made some years after the passage. ;of this act, overlooked it, and omitted to embrace it in his revision, and retained several sections of the previous law which the omitted statute has repealed. To remedy this oversight, and to restore the statute, “the Legislature, at the session of 1871-2, re-enacted the statute ‘to prevent homicides,’ with the same title, and, in all material respects, in language identical with that employed in the act of February 21, 1860.” Laws 1871-72, p. 83; Railroad v. Shearer, 58 Ala. 678.

Immediately after the re-enactment on February 5, 1872, of the act “To prevent homicides,” the Legislature provided by statute that, “When the death of any minor child is caused by the wrongful act or omission’ of any officer or agent of ah incorporated company, or private association of persons, the father of such child, or if the father be not living, the mother, may maintain an action against such corporation or private association of persons, for such wrongful act or omission, and may recover such damages as the jury may assess.” This act, for reasons given in the opinion of the court, was held to be unconstitutional in the case of Smith v.

Railroad, 75 Ala. 449. Soon thereafter the Legislature passed the act, the provisions of which are now embraced in

section 26, above set out. The act “To prevent homicides” applied as well to infants as adults, but it did not, as construed by the courts, create any right of action in the father or mother, and, as soon as this became- sufficiently known, the law now in force was passed (Acts 1884-5, p. 99), the sole purpose and effect of which was to extend the right of action already lodged in the personal representative to the father, and, in certain contingencies, to the mother. And while there is no express limitation in this statute to cases in which recovery might have been had by the party injured, had not death ensued, the decisions in Alabama measure the father’s recovery under this

section of the Code by a consideration of what the child’s right would have been had he survived, at least to the extent of confining the former to cases in which the latter might have recovered, though not extending it to all such cases. The only effect which

section 26 of the Code had is to give the father, and, in the contingencies named in

section 25, the mother, or the personal representative, of a minor whose death has been caused by wrong and negligence, the right to recover damages, and to confine the personal representative’s right to cases where neither the father nor mother has instituted suit. The parent’ cannot sue at all on a cause of action arising under the employer’s liability act. Sections 1749-51, Code 1896; McNamara v. Logan, 100 Ala. 187, 14 South. 175. The group of statutory enactments in Alabama, to which we have referred, are all, to some degree, in derogation of the common law.

The habit of thought in the professional legal mind, both on the bench and at the bar, receives its trend from the classic, and almost sacred, rules and canons of the common law. The opening words of the trial judge’s charge to the jury, “At common law in England and in this country no action can lay at all for the death of a human being,” constitute a “proof-text” or a known or admitted major premise in most judicial and professional reasoning on this subject, and the reason which he gives also stamps its complexion on such discussions.

He says, “The idea was that the injury was merged in the felony.” Touching the terms of one of these statutes, we find in an early case (1883) this language: “Tlie statute is highly penal in its terms, and must be construed as a penal statute.” 75 Ala. 449. In a later case (1898), this language occurs: “But while the damages recoverable are undoubtedly, under our former rulings, punitive in their nature, and not compensatory, they are not, in a strict sense, a penalty, nor is the action penal, or quasi-criminal, within the meaning of the constitutional provisions as above construed.

The statute is remedial, and not penal, and was designed as well to give a right of action where none existed before, as to ‘prevent homicides,’ and the action given is purelv civil in its nature for the redress of private, and not public wrongs.” So. Ry. Co. v. Bush, 122 Ala. 489, 26 South. 168. The cases arising in Alabama on or under these statutes are numerous. We note in the margin those which we have examined and considered.

The very able and distinguished counsel for the plaintiff in error urges in his printed brief, as he did in his oral argument, that the ruling of the trial court on the question we are now considering is directly opposed to the decision in the case of Williams v. S. & N. A. R. R. Co., 91 Ala. 635, 9 South. 77.

He insisted with confidence before us in his oral argument, as he also does in his brief, that “In that case the court expressly limited the recoverable damages to compensation to the father for the loss of the minor’s services.” And the counsel for the defendant in error in his brief concedes that the case of Williams seems to assert a different doctrine from that for which the defendant in error here contends. With much diffidence we feel constrained to announce our belief that the authority of the case of Williams does not» go to the extent claimed.

And to show and support our view, we will summarize more largely than is usual with us the report of that case. We begin with the syllabus, which, in substance and almost literally, is as follows: “1.

Under the statute defining the liability of the master (or employer) for injuries to the servant (or employe) while in the service, the right of action, for injuries which result in death is given only to the personal representative of the decedent, but a right of action is given to the father by another statute, when the death of his minor child is caused by the wrongful act, omission, or negligence of any person or corporation. “2.

Contributory negligence on the part of the person injured, while employed as a brakeman on a railroad, is a defense to an action for damages, unless the evidence further shows that, after his peril was discovered, or ought to have been discovered, the injury might have been avoided by the exercise of due care and diligence on the part of the engineer. “3.

When the father sues to recover damages for the death of his minor son, who was killed while in the employment of the defendant railroad company as a brakeman, without his consent, the contributory negligence of the minor is no defense to the action, though it might be available as a defense to an action by the minor himself, if death had not ensued from the injuries; but, if the father consented, expressly or by implication, to the employment of the minor in the service, the contributory negligence of the minor is imputed to the father, and defeats his right of action. “4.

The use of ‘kicking-switches,’ or ‘running-switches,’ in detaching and propelling cars, cannot be said to constitute negligence, as ‘they seem to be in general use by well-regulated railroads,’ but there may be negligence in connection with their use, by failing to instruct a young and inexperienced brakeman as to the - attendant danger. “5.

The damages recoverable by the father, in a statutory action for injuries resulting in the death of his minor son, are compensatory only, and not punitive.” The following language, quoted by counsel, appears in the opinion: “At common law the father could sue for and recover damages for an injury not resulting in death wrongfully done to his minor son. The damages were to compensate him for the loss of services. If death resulted, the action was not maintainable. The statute (Alabama) confers the right of action on the father, although death may have resulted. * * * We hold that, under

section 2588 of the Code (1886), the father may recover in all cases where at common law he might have recovered if the injury had not resulted in death, and the purpose of this statute was to give the father the right of action, although death resulted from the injury.” The following also appears: “The second, third, fourth, and fifth counts of the complaint do not negative that the employment was with the father’s consent; and these counts are evidently founded upon the supposed liability of the defendant under the employer’s act. Sections 2590, 2591, Code of 1886; sections 1749-1751, Code of 1896.

The father cannot maintain an action to recover under the employer’s act (citing authority).

As he cannot recover on these counts, under any state of evidence, there was no error in giving the general charge in favor of the defendant, of which plaintiff can complain, so far as it denied his recovery on these counts. * * * The correctness of this charge involves the inquiry whether any count of the complaint, if sustained by proof, entitled plaintiff to recover; and if so, was there any evidence before the jury, which tended to sustain such count of the complaint. “Code, § 2588 (3880) (26, 1896) provides as follows: ‘When the death of a minor child is caused by the wrongful act, or omission, or negligence of any person, or persons, or corporation, his or their servants, or agents, the father may sue, and recover such damages as the jury may assess.’ ” Then follows more than two full pages, constituting the body of the opinion, of a discussion bearing upon the question of parties and the application of the doctrine of contributory negligence, concluding with this paragraph: “The first and last counts of the complaint aver that the decedent was a minor son of the plaintiff; that he was wrongfully employed by the defendant to perform the duties of a brakeman, without the knowledge and consent of plaintiff, and that while attempting to obey the orders of his superior in the performance of his duties as brakeman, he was injured and killed by the wrong and negligence of the defendant’s agents or servants.

These two counts show a good cause o£ action, and there was evidence tending to sustain the averments of these two counts. It was error to give the general charge for the defendant” The only language of the court bearing expressly on the measure of damages is contained in the last three lines of the opinion, as a separate paragraph, viz.: “The damages recoverable by the father are compensatory, and not punitive. L. & N. K. It. Co. v. Orr, 91 Ala. 548, 8 South. 363, and authorities cited.” We will now notice the Orr Case.

This was an action brought by Horace Orr, administrator of the estate of Henry Griffin, deceased, to recover damages for the wrongful and negligent acts of the defendant and its servants, which, as alleged, caused the death of Griffin while in the defendant’s service as a brakeman. We quote from the opinion in that case: “In this state, the statute provides that, in certain cases, the master or employer ‘is liable to answer in damages’ to the servant or employé. Code. § 2591 (1886).

The record presents the direct question, as to what is the measure of damages under the statute, where death results.” After a liberal discussion of the English common-law rules and the evolution of the new doctrines and reference to authorities, the opinion proceeds: “These principles furnish a correct exposition of our statute; and consequently we declare, under the provision of

section 2591 of the Code, neither exemplary nor vindictive damages are recoverabia The purpose of this statute is entirely different from that intended by the act of February 5, 1872 (Daws 1871-72, p. 83), the object of which was to ‘prevent homicide.’ ” The deceased, at the time he was killed, was 35 years of age. The suit was brought under the employer’s act. And, in the decision and opinion of the court, no reference to the damage which a parent might recover for the death of a minor child, a member of the family, was made or would have been pertinent.

The distinguished counsel for the plaintiff in error calls our attention, to language taken from the opinion of the court in the case of Nashville, etc., Ry. Co. v. Hill, 146 Ala. 240, 40 South. 612, viz.: “The gravamen of the eighth count is ‘the alleged wrong of the defendant to putting the plaintiff’s minor son to work at a dangerous place upod a dangerous work without her consent.’ The count avers that in consequence of such wrong her son was killed, and the plaintiff (thereby) lost his service during his minority, and plaintiff was damaged by reason of said injury.

This damage was the deprivation of his service and wages until he attained his majority.” The complaint originally contained seven counts, and count 8 was added by amendment. The suit was brought within a year from the happening of the accident, but count 8 was not filed until more than a year thereafter. The defendant pleaded the statutes of limitations of one year, upon which issue was joined.

We quote from the opinion: “The comparison of count 1 with count 8 shows that the subject-matter of the latter was within the lis pendens of the original suit, and hence said count introduced by amendment is saved from the ban of the statute of limitations by the doctrine of relation back to the commencement of the suit.” The language, “this damage was a deprivation of his service and wages until he attained his majority,” has relation logically to the averment in the count “that, in consequence of such wrong, her son was killed, and the plaintiff (thereby) lost his service during his minority, and plaintiff was damaged by reason of said injury.” She could not recover more than she claimed.

The only questions before the court in the Hill Case, were, first, whether the cause was removable to the federal court; second, the question of limitations; and, third, whether the amendment changed the form of action. The counsel in his printed brief says: “This court itself has expressly decided in the case of McGehee v. McCarley, 91 Fed. 462, 33 C. C. A. 629, that in a-suit under

section 26 of the Alabama Code the damages recoverable are compensatory, and not punitive, following the decision in Williams v. Railroad Co., supra. The result in the McCarley Case was changed on rehearing (McGehee v. McCarley, 103 Fed. 55, 44 C. C. A. 252), but that change was not due to any change in the opinion of the court as to the construction of

section 26 of the Code, but to the discovery by the' court that the suit was brought, not under

section 26, but under

section 27 of the Code.” We reply to this suggestion of counsel by quoting in full all that this court said on the subject in the case of McGehee v. McCarley: On first hearing: “We find nothing in the statute law of Alabama which would require a departure from the doctrine announced in Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97. On the contrary, we find that the Supreme Court of Alabama, in construing the very statute under which this action was brought (Code Ala. 1886, § 2588), said that the damages recoverable under that statute are compensatory, and not punitive. Williams v.

Railroad Co., 91 Ala. 635, 9 South. 77.” McGehee v. McCarley, 91 Fed. 465, 33 C. C. A. 629. On rehearing: “This cause was fully stated when it was first passed upon by this court. See 91 Fed. 462, 33 C. C. A. 629". An application for rehearing having been made by the defendant in error, and, the same having been granted, the causé has been fully reargued, and the court has again carefully considered it. The single error heretofore found by this court in the cause was that the trial court refused to charge the jury that only compensatory, and not punitive, damages were recoverable in the cause.

On the first hearing of this cause the argument and the briefs treated very imperfectly, and in an unintentionally misleading manner, the matter of the statute law upon which this cause was based. Assisted by the argument and briefs on the rehearing, the court has carefully re-examined the point upon which it ordered tills cause to be remanded, and has concluded that the statute law of Alabama permits a personal representative to recover punitive damages in such a cause as the one at bar, and that therefore it is not within the doctrine of Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct 261, 37 L. Ed. 97.

The court has also re-examined the other questions involved in this cause, and finds no error in the causo. It is therefore ordered that the former order of this court, reversing the ."judgment of the lower court and remanding this cause for a new trial, bo, and the same is hereby, annulled and set aside. It is further ordered that the judgment of the lower court be, and the same is hereby, affirmed.” 103 Fed. 55, 44 C. C. A. 252. Does our decision sustain the contention of the plaintiff in error? Does it not, to the contrary, support the contention of the defendant in error?

We think that it at least docs show the danger of mistaking some inadvertent language in an opinion for the authority of the case. It would unduly extend this opinion to notice ever so briefly all of the numerous cases in the Alabama Reports which relate to the adoption, development, and application, in that state, of the doctrines of Lord Campbell's Act; but one who will examine the cases cited in the margin will be able to discover sufficient grounds to conclude, as we do, that the trial judge did not err in that part of his charge to the jury, wherein he said to them: “The

section of the Code, under which the plaintiff has brought this suit, says that the plaintiff shall recover ‘such damages as the jury may assess,’ and In that sense, by the letter of the statute under which this suit is framed, the assessment of damages is loft to the jury, but it is left to the jury under the control of the law, and under the control of the court, and an excessive verdict produced by appeals to passion, or to prejudice, or to sympathy would of necessity have to he set aside or reduced by the court.

I do not say to you In this case that the amount of damages should be limited to the amount of wages or earnings that this lad might have made from the time of the accident to the time he reached his majority. I do not say to you that there is such a limit The plaintiff can recover ‘such damages as the jury-may assess,’ and you should have regard to all the facts and circumstances of the case which have been so well discussed by counsel, not being Influenced by any appeal to passion, sympathy, or feeling.

We sit here to decide the ease, all of us, according to the proper rules of justice between the parties.” It follows that the judgment of the Circuit Court should be affirmed. And it is so ordered. Nashville C. & St. L. Ry. Co. v. Hill, 146 Ala. 240, 40 South. 612; Bube v. Br. L. & P. Co., 140 Ala. 276, 37 South. 285, 103 Am. St. Rep. 33; So. Ry. Co. v. Bush, 122 Ala. 489, 26 South. 168; L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35; Ala. G. S. R. R. Co. v. Burgess, 116 Ala. 509, 22 South. 913; Buckalew, Adm’r, v. Tenn. C. I. & R. R. Co., 112 Ala. 146, 28 South. 606; L. & N. R. R. Co. v.

Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21; Ala. G. S. R. R. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; Tenn. C. I. & R. R. Co. v. Herndon, Adm’r, 100 Ala. 451, 14 South. 287; McNamara et al. v. Logan, 100 Ala. 187, 14 South. 175; Kansas City, M. & B. R. R. Co. v. Sanders, 98 Ala. 293, 13 South. 57; Richmond & D. R. R. Co. v. Freeman, 97 Ala. 289, 11 South. 800; Williams v. S. & N. A. R. R. Co., 91 Ala. 635, 9 South. 77; L. & N. R. R. Co. v. Orr, 91 Ala. 548, 8 South. 360; Lovell v. De Bardelaben C. & I. Co., 90 Ala. 13, 7 South. 756; Stewart v. L. & N. R. R. Co., 83 Ala. 493, 4 South. 373; Smith v.

L. & N. R. R. Co., 75 Ala. 449; S. & N. A. R. R. Co. v. Sullivan, Adm’r, 59 Ala. 272; Savannah & M. R. R. Co. v. Shearer, Adm’x, 58 Ala. 672.