Asher et al. v. Cabell et al., 50 F. 818

Pardee, Circuit Judge. It is well settled that by the common law no civil action lies for an injury to a person which results in his death. Insurance Co. v. Brame, 95 U. S. 754—756; Dennick v. Railroad Co., 103 U. S. 11-21; The Harrisburg, 119 U. S. 199-214, 7 Sup. Ct. Rep. 140. There is no statute of the United States giving such an action in the courts of the United States. It follows that, if such action can be maintained, authorities must be found therefor in the statute of the state wherein the injury occurred.

Article 3128, Rev. St. Tex., is as follows: “The common law of England (so far as it is not inconsistent with the constitution and laws of this state) shall, together with such constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the legislature. ” It follows that in the state of Texas no civil action will lie for injuries resulting in death, unless authorized by statute, and the following is the only statute on the subject: “An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: First.

When the death of any person is caused by the negligence or carelessness of the proprietor, owner,^charterer, or hirer of any railroad, steamboat, stagecoach, or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence, or carelessness of their servants or agents. Second. When the death of any person is caused by the wrongful act, negligence, unskillfulness, or default of another.” Rev. St. Tex. art. 2899. The construction to be given

article 2899 seems to be clear. As against common carriers, an action is given for injuries resulting in the death of a person, when caused by the negligence or carelessness of the common carrier, or by the unfitness or negligence or carelessness of the servants or agents of the common carrier; as against all other persons, the cause of action for injuries resulting in death is only given when the death is caused b,y the wrongful act, negligence, unskillfulness, or default of the defendant himself.

In other words, common carriers are made liable for the unfitness, negligence, and carelessness of their servants or their agents resulting in the death of a person. Other than common carriers arc not made liable except for their own wrongful acts, negligence, unskill-Julness, or defaults, when the same results in the death of a person. And this seems to be the construction given to the statute by the supreme court of the state of Texas. In Hendrick v. Walton, 69 Tex. 192, 6 S. W.

Rep. 749, which was a suit brought against a sheriff for the wrongful and unlawful act of his deputy in killing a person, thesupreme court of the state of Texas, construing

article 2899, among other things, said: ‘•In the first place, it is to be observed that this is not the regulation or extension of a right previously existing at common law. The right of action-for injuries resulting in death is wholly the creature of the statute; and the authority of the suit here brought, if found at all, must be found in the written law itself. If the second subdivision of the

article quoted stood alone, it would be a grave question whether wo should not apply to it the maxim that what one does for another he does himself, and to hold that it not only gives a rigid of action against ono whose own immediate act or negligence is the cause of the death of another, but also against a principal, when the death has been caused wrongfully or negligently by the act of his agent, neither principal nor agents are named in the subdivision in question, but in subdivision 1, immediately preceding this, an action is given against the carriers, to whom it applies, for fatal injuries, not only caused by their own personal negligence, but aiso where accruing from the gross negligence of their servants or agents.

This provision has been considered by this court in the case of Railway Co. v. Scott, (decided at the Tyler term, 1886,) and is held to afford no remedy against a railroad company when the death is caused by the mere ordinary neglect of the servants or agents of the corporation.

This law was amended by the omission of the word ‘gross’ by the act of March 25, 1887, (Laws 20th Leg. p. 44,) but the amendment was subsequent to the accrual of the alleged cause of action in this case, and has no bearing upon the question. ^Besides, the change of ono clause of a statute by amendment does not operate to change tire construction of another and independent clause as derived from the context of the original act. It is dear, therefore, that in the first subdivision of

article 2899 the legislature did not mean to apply the rule that the act of the agent is the act of the principal, because for the ordinary negligence of the agent it does not. make the principal liable. Sow, is it reasonable to presume that they intended to exempt corporations owning steamboats and railroads, who can only act through agents, from liability for ordinary neglect of their agents or servants, and at the same time make private persons responsible for the death of others, when not caused by their own immediate act or omission? We think not.

We rather think it was the purpose to impose the greater liability upon carriers by making them responsible for the gross negligence of their agents, and at the same time to leave the liability of others for the acts of their agents as it existed at common law. * * * Since, therefore, the language of our statute indicates that the legislature of our state did not mean to make persons responsible for the acts of their agents in these eases, except such as are specified in the first subdivision of the

article cited, it is1 but reasonable to conclude that they intended to render other persons liable only for their own immediate acts.” The question, then, to be determined in the present case is whether the second amended original petition filed by the plaintiffs in the circuit court shows a case where the defendant Cabell, late marshal, is sued for his own wrongful acts, negligence, and defaults.

The said petition shows that the defendant Cabell, as United States marshal, had in his custody, under lawful process of the United States courts, certain prisoners, one of whom was Alfred Aaron Marlow, whose widow brings this present suit; that against the said prisoners then and there in the custody of the marshal there was great hostility and violent public prejudice openly manifested by certain lawless persons in Young county, in the jail of which county said prisoners were confined; that an attack had been made by the said lawless persons upon the said prisoners while confined in the jail aforesaid, and that in such attack the marshal’s deputies and guards made no effort whatever to protect the said prisoners, but were in sympathy with the lawless persons aforesaid; that the defendant Cabell was well aware of the attack upon the jail aforesaid, and of the excited, lawless, and dangerous condition of public sentiment existing in said county against said prisoners, and of the hostility and prejudice entertained against them by the lawless persons aforesaid; that the said Cabell, marshal, committed the custody of said prisoners, including said Alfred Aaron Marlow, to his deputy, one Ed.

Johnson, well knowing said Ed.

Johnson to be an unfit and improper person to be a deputy marshal, or to be in charge of the custody and control of the said prisoners ; and that the said marshal, well knowing the unfit and improper character of the said deputy, and well knowing the notorious hostility and prejudice existing against the said prisoners on the part of the lawless persons aforesaid, and of a previous failure of his deputies and guards to protect said prisoners, wrongfully and negligently directed and ordered the said Johnson, as deputy, as aforesaid, to take said prisoners into his official charge, and remove them from the county jail in Young county, without giving the same his personal attention, or intrusting it to a fit and competent deputy.

The said petition goes on further to show that in the removal so ordered and directed by the defendant, with the connivance of the said Johnson and the guards and deputies selected by the said Johnson, the said prisoners were attacked by a mob, who murdered the said Alfred Aaron Marlow; the petition concluding: “Wherefore, in the matters and things hereinbefore recited, which led to the cruel and inhuman murder of the said Alfred Aaron Marlow, plaintiffs alleged that said William L.

Cabell, marshal as aforesaid, acted wrongfully and negligently; and that by reason of such wrongful acts and negligence the said Alfred Aaron Marlow met his death.” From this it appears that the defendant Cabell is distinctly charged with, default and negligence in the performance of his duty as United States marshal, which default and neglect led and contributed to, if not entirely causing, the killing of Alfred Aaron Marlow, in this:

(1) That knowing the danger attending the life and safe-beeping of said Marlow, a prisoner in his custody, he neglected to lake measures for his protection; (2) that he knowingly intrusted the custody and safe-keeping of said Marlow to an unfit and improper person; (3) that knowing the unfit and unworthy character of Johnson, and well knowing that a dangerous and lawless element of the community was conspiring and contriving to injure and oppress said Marlow, and well knowing of the previous attack of said dangerous and lawless element upon the jail and the prisoners therein, and of the collusion of his deputies and guards therewith, he, the defendant, directed and permitted the said Johnson to remove said Marlow from the jail in Young county, without taking any measures to protect said Marlow in said removal.

It seems clear that the defendant Cabell, as late United States marshal, while undoubtedly sued on account of the faults, negligence, and wrongful acts of his deputies and agents, is also sued for bis own defaults and negligence. The question remaining is whether the defaults and negligence charged directly against the defendant arc sufficient in connection with the other facts alleged to make him responsible for the unlawful killing of Alfred Aaron Marlow. The defendant, as United States marshal, certainly owed a duty in the premises to the said Marlow, — that of safe-keeping and protection from unlawful injury.

The defendant’s oath of office, his bond, and the necessary implications of the law, all point to such duty as imposed upon him. Bee Itev. Ht. U. S. §§ 782, 783, 5538. “ Whenever the common law, a statute, a municipal by-law, or any other law, imposes on one a duty, if of a sort affecting the public within the principles of the criminal law, a breach of it is indictable, and a civil action will lie iu favor of any person who has su bred special]}’ therefrom.” Bish. Yon-Cont.

Law, § 132, and cases there cited. “Commonly, where the law has cast a duty upon one to another, a simple neglect to discharge it, whereby the other has suffered injury, is actionable.” Id. § 526. “ When the injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. This is one form of a universal principle in law, that he who contributes to a wrong, either civil or criminal, is answerable ’as a doer.

And it is immaterial to this proposition whether that to which he contributes is the volition of a responsible person or of an irresponsible one, or whether it is a mere inanimate force or a force in nature or a disease.” Id. § 39, and cases there cited. That a United States marshal may take prisoners into his custody, permit them to be disarmed and shackled, and then negligently and knowingly deliver them over to incompetent deputies and the known hostility of mobs, without liability for hi? neglect of duty, is a proposition which we think cannot be sanctioned.

Substantially, this is alleged against the defendant in this case. The judgment of the circuit court, in sustaining the exception to the plaintiffs’ second amended original petition, was, in our opinion, erroneous. The other grounds of exception are not urged, and, so far as the record shows, are not well taken. The judgment of the circuit court is reversed, with costs, and the cause is remanded, with instructions to overrule the exceptions to the plaintiffs’ second amended original petition, and otherwise proceed in this cause according to law.