The Employers' Liability Act of 1908 expressly applies to, and
is in force in, Porto Rico, but
quaere, and not necessary
to decide in this case, whether the Safety Appliance Acts apply to,
or are in force in, Porto Rico.
Where words of a statute are clear, they must be strictly
followed even if the construction causes apparently unnecessary
inconvenience.
Where the purpose of Congress is clear, the courts must yield to
such purpose and assume that all contending considerations were
taken into account by Congress.
The National Employers' Liability Act of 1908 gives the right of
recovery to the personal representatives, and not to the heirs, of
one killed by the negligence of the employer, and the heirs cannot
maintain an action even where the local statute, as in Porto Rico,
gives a right to the heirs as well as to the personal
representatives to maintain such an action.
A defendant company has the right under the Employers' Liability
Act of 1908 to have its liability determined in one action.
5 P.R.F. 273 reversed.
The facts, which involve the construction of the Employers'
Liability Act of 1908 and its application to Porto Rico, are stated
in the opinion.
Page 224 U. S. 551
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action for damages for the death, through the alleged negligence
of plaintiff in error, of the husband and father of defendants in
error, who are, respectively, deceased's widow and son.
The action was originally brought by Ann Elizabeth Birch. A
demurrer was filed to the complaint, which was sustained in part,
and the court directed counsel
"to so amend the complaint as to show whether or not the
plaintiff is the sole heir of the deceased, or, if she sues for the
benefit of certain other heirs, then the complaint must
specifically state the name of said other heirs, and state under
what law the said action is brought."
An amended complaint was filed, alleging that the deceased,
Francisco Abraham Birch, was, when killed at his post of duty as
brakeman on a train of the railroad which was running through the
City of Aguadilla at a high rate of speed, and contrary to an
ordinance of the city, in consequence
Page 224 U. S. 552
of which speed and a defect in one of the wheels of the car, the
body of the car left the tracks and was thrown to the ground,
crushing the deceased beneath it and thus causing instant
death.
It is alleged that a proper inspection of the wheels would have
disclosed the defect in it, and further that, if the train had been
running within the limits of the requirements of the law, the train
might and would have been stopped before the accident occurred.
At the time of his death, it is alleged, that the deceased was
forty-seven years of age, was receiving $42 per month, was a
skilled and efficient railroad employee, and was in vigorous health
and strength. And it is alleged that his death was caused without
negligence on his part, and while he was in the faithful discharge
of his duty.
It is declared that the
"action is based upon an act of Congress entitled, 'An Act
Relating to the Liability of Common Carriers by Railroad to Their
Employees in Certain cases,' approved April 22, 1908."
It is alleged that Ernest Victor Birch was poor in health and
frail in body, and was dependent upon deceased for support.
Damages were prayed at $10,000.
The railroad company denied the specific allegations against it
of speed and failure to inspect the wheels, alleged that they were
inspected, and that no defects were visible or could be
ascertained. It also put in issue the allegations of the complaint
in regard to Ernest Victor Birch.
The answer alleged that no administration proceedings had been
had on the estate of deceased, and that neither of the plaintiffs
has been declared his heir, as required by law. It is also alleged
that Ernest Victor Birch was over the age of twenty-one years, and
that deceased was under no legal obligation to support him.
The case was tried to a jury upon evidence conflicting
Page 224 U. S. 553
upon certain of the issues. There was no conflict as to the
circumstances of the accident, the death of Birch in the line of
duty, and that the accident was caused by a broken wheel and that
the train was not equipped with air brakes, but only with the
ordinary hand brakes. There was conflict as to the speed of the
train and as to whether the engineer in charge of the locomotive
could see signals to stop, or whether he disregarded them.
The instructions of the court, so far as material, will be
noticed presently in considering the assignments of error.
These assignments are: (1) the court erred in overruling the
demurrer, (2) in denying the motion to dismiss the action and
direct verdict on the ground that it had not been brought by the
personal representative of the deceased, as required by the statute
upon which it was based, (3) in holding that the heirs could sue in
their own names, (4) in refusing to give the following:
"That the court instruct the jury that the federal act with
regard to safety appliances has no application to the question at
bar."
And (5) in refusing to instruct the jury as follows:
"That they [the plaintiffs in action] are entitled to recover
the actual compensation that they would have received if he [the
deceased] had not been killed, and that would be limited to the
purchase of an annuity for his recognized period of life."
These assignments are reducible to three propositions, to-wit:
(1) the capacity of plaintiffs to sue, (2) the application of the
safety appliance law, and (3) the measure of damages. Their
discussion requires a consideration of the Employers' Liability
Law, as the amended complaint is based on that law. Section 2 of
the act provides as follows (35 Stat. 65, c. 149):
"That every common carrier by railroad in the territories, the
District of Columbia, the Panama Canal Zone, or other possessions
of the United States shall be liable in damages to any person
suffering injury while he is employed
Page 224 U. S. 554
by such carrier in any of said jurisdictions, or, in case of the
death of such employee, to his or her personal representative, for
the benefit of the surviving widow or husband and children of such
employee, and if none, then of such employee's parents, and, if
none, then of the next of kin dependent upon such employee, for
such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment."
Section 3 includes the defense of contributory negligence, but
requires the damages to be "diminished by the jury in proportion to
the amount of negligence attributable to such employee," but
provides that contributory negligence is not to be attributable to
the employee injured or killed "where the violation by such common
carrier of a statute enacted for the safety of employees
contributed to the injury or death of such employee." And, by § 4,
assumption of risk by the employee is also excluded in such
case.
Such part of the instructions of the court as are necessary to
be considered in connection with the act are, as given by the
court, in effect as follows:
(1) The action is brought under the Employers' Liability Act of
Congress of April 22, 1908, which is in force in Porto Rico, the
provisions of which are explained as set out above.
(2) The damages can only be compensatory, and the measure of
them is what the plaintiffs or either of them necessarily lose in
or by the death of their husband and father, and in measuring these
damages the jury may take into consideration the age, health, and
expectancy of life of the deceased, his earning capacity, his
character, his mode of treatment of his family, and the amount
contributed out of his wages to them for their support, and
calculate from these facts the amount the jury, as reasonable
Page 224 U. S. 555
and practical men, believe the plaintiffs lose because of the
death. If the deceased was guilty of contributory negligence, the
damages should be diminished in proportion to such negligence, and
if it be established by a preponderance of the evidence that the
violation by the defendant of the law of Congress requiring safety
appliances upon its trains and cars contributed to the death of the
deceased, or was the proximate cause thereof, then the deceased
cannot be held to have been guilty of contributory negligence nor
to have assumed the risk, if the jury believe that the absence of
safety appliances in and about the train contributed to or was the
proximate cause of the injury.
The Employers' Liability Act expressly applies to Porto Rico. It
is, however, contended that the Safety Appliance Act does not. To
this contention defendants in error answer that it is made a part
of the former act by the provision of § 3 of that act
"that no such employee who may be injured or killed shall be
held to have been guilty of contributory negligence in any case
where the violation of such common carrier of any statute enacted
for the safety of employees contributed to the injury or death of
such employee."
A similar provision is made in § 4 as to assumption of risk.
These opposing contentions present a serious controversy. It is,
however, really doubtful if they arise on the record. The charge in
the complaint is that the deceased came to his death by being
crushed under the body of a car upon which he was acting as
brakeman, and that his death was "caused by the negligence of the
defendant in failing to cause a proper inspection of the wheels" of
the car, which "inspection would have discovered the unsafe
condition of the wheel in question." As a further ground of
negligence, it was charged that the train was running at a high
rate of speed and that, if it had been running within the speed
"requirements of the law, the same might and would have been
stopped
Page 224 U. S. 556
before the accident occurred." To these charges the testimony
was directed to sustain or deny. The amount of testimony as to
contributory negligence and assumption of risk we should not think
was worthy of attention if the court and counsel had not considered
an instruction was called for in regard to them, and it may be that
the question is presented of the application of the Safety
Appliance Act to Porto Rico. However, we are not called upon to
decide it, as we find a fatal defect of parties.
In the original complaint, defendant in error alleged that she
was the widow of the deceased. To this a demurrer was filed,
alleging as a ground that the complaint did not "state in what
capacity" she sued. Thereupon, an amendment was directed and made,
as we have indicated. In the amended complaint, she joined with her
Ernest Victor Birch, alleging him to be the son and herself the
widow of the deceased. By agreement of the parties, the demurrer to
the original complaint was considered as a demurrer to the amended
complaint, and as such it was overruled.
The record shows that, at the trial, the plaintiffs presented,
against the objection of the company, a certificate from the proper
insular court "in which it was certified that the plaintiffs in the
action were the legal heirs of the deceased." Subsequently the
court, in passing on and overruling a motion of the company for
direction of a verdict for it upon the ground that the suit was not
"brought by any person authorized under the national Employers'
Liability Act to bring suit," said
"that the suit being brought under the Act of Congress of April
22, 1908, it is properly brought in the name of the only persons
for whose benefit any recovery could be had, and it is the opinion
of the court that the words used in § 2 of the act in question, 'to
his or her personal representative,' cannot be construed to mean
that it is necessary, in cases where only the husband or wife could
inherit and are the only survivors, that they be forced, in the
absence of any estate
Page 224 U. S. 557
belonging to the deceased other than his right to sue, to have
an administrator appointed."
But the words of the act will not yield to such a liberal
construction. They are too clear to be other than strictly
followed. They give an action for damages to the person injured,
or, "in case of his death, . . . to his or her personal
representative." It is true that the recovery of the damages is not
for the benefit of the estate of the deceased, but for the benefit
"of the surviving widow or husband and children."
But this distinction between the parties to sue and the parties
to be benefited by the suit makes clear the purposes of Congress.
To this purpose we must yield, even if we could say, as we cannot,
that it is not a better provision than to give the cause of action
to those in relation to the deceased. In the present case, it looks
like a useless circumlocution to require an administration upon the
deceased's estate, but, in many cases, it might be much the simpler
plan, and keep the controversy free from elements but those which
relate to the cause of action. But we may presume that all
contending considerations were taken into account, and the purpose
of Congress expressed in the language it used.
It is not denied that, under the laws of Porto Rico, there is a
distinction between heirs and personal representatives. Indeed,
defendant in error cites § 61 of the Code of Civil Procedure, which
recognizes the distinction. The section provides:
"When the death of a person, not being a minor, is caused by
wrongful act of another, his heirs or personal representatives may
maintain an action for damages against the person causing the
death."
And defendants in error urge that the national act should be
construed to give a like alternative right to heirs or personal
representatives, although its language is different. The purpose of
the national act, it is argued, as of the Code of Civil Procedure
of the Island, is to keep the action
Page 224 U. S. 558
alive and beneficently "to protect those dependent upon the
employee as well as the employee himself," and that therefore "a
personal representative'" might act in the place of the
deceased. But it is further argued that this was not the only
purpose of the act. It had the purpose of giving to a defendant
company the right to have its liability determined in one action,
and that such liability would be secured whether executors or
administrators sued or heirs sued. The reasoning is not very
satisfactory, and puts out of account the absolute words of the
statute. And these take a special force in Porto Rico. An
Employers' Liability Act existed there at the time of the enactment
of the national act which gave a cause of action, if the conditions
of liability existed, to the widow of the deceased or to his
children or dependent parents. The national act gives the right of
action to personal representatives only.
Judgment reversed without prejudice to such rights as the
personal representatives may have.