Where the jurisdiction of the Circuit Court does not depend
entirely on diverse citizenship, but is also founded upon a federal
statute, and the amount exceeds one thousand dollars, the judgment
of the circuit court of appeals is not final under § 6 of the
Judiciary Act of 1891.
Page 226 U. S. 571
Even if the petition in a suit against an intrastate carrier for
the death of one engaged in interstate commerce asserts a cause of
action under the state statute, without referring to the Federal
Employers' Liability Act, the court is presumed to be cognizant of
the federal act and of the fact that it has superseded state laws
upon the subject.
Under the Federal Employers' Liability Act, the beneficiaries of
one killed cannot maintain an action against the employer except a
personal representatives of the deceased, but, where the plaintiff
is sole beneficiary and takes out letters after the commencement of
the action, the court may allow an amendment alleging that the
plaintiff sues in the capacity of administrator.
An amendment to the effect that plaintiff sues as personal
representative on the same cause of action under the federal
statute, instead of as sole beneficiary of the deceased under the
state statute, is not equivalent to the commencement of a new
action, and is not subject to the statute of limitations.
Union
Pacific Ry. Co. v. Wyler, 158 U. S. 285,
distinguished.
192 F. 919 affirmed.
The facts, which involve the construction of the Federal
Employers' Liability Act and to what extent amendments of pleadings
are allowable, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
The defendant in error, Sallie C. Wulf, in her individual
capacity, commenced this action January 23, 1909, in the Circuit
Court of the United States for the Eastern District of Texas to
recover damages by reason of the death of her son, Fred S. Wulf,
which occurred November 27, 1908, while he was in the employ of the
defendant (now plaintiff in error) as a locomotive fireman, and in
the performance of his duties as such upon a train bound
Page 226 U. S. 572
from Parsons, in the State of Kansas, to Osage, in the State of
Oklahoma. The original petition set up diversity of citizenship,
plaintiff being alleged to be a
bona fide inhabitant,
resident, and citizen of Texas, and the defendant a corporation
organized under the laws of the State of Kansas. For cause of
action, it was averred that the decedent's death was the result of
a bursting of the locomotive boiler due to defects therein
attributable to the negligence of the employer. It was further
averred that
"plaintiff is the mother of the said Fred S. Wulf, and is a
feme sole, and the said Fred S. Wulf was an unmarried man,
leaving no wife or children surviving. That his father died prior
to the time that he died, and plaintiff is the sole heir, next of
kin, and beneficiary of the estate of the said Fred S. Wulf,
deceased. That there is no administration pending on the said
estate of the said Fred S. Wulf within this state [Texas] or
elsewhere, and that none is necessary. That said decedent was a
resident citizen of the State of Texas when he was killed, but was
temporarily working in Kansas. That, by virtue of the laws of the
State of Kansas, where the said Fred S. Wulf was killed, a right of
action is provided by statute for injuries resulting in death."
The plaintiff demanded $40,000 damages. On May 19, 1909,
defendant filed its original answer, consisting of a general
demurrer, a general denial of the allegations of the petition, and
averments that the injuries complained of were proximately caused
and contributed to by deceased's own negligence and want of
ordinary care and by that of his fellow servants. No action appears
to have been taken upon this pleading, but, on January 6, 1911,
defendant filed its first amended answer, consisting of a general
demurrer, a special demurrer to the claim of $40,000 damages, on
the ground that, under the laws of Kansas the damages were limited
to $10,000, and averments that, at the time of the injury and death
of deceased, defendant was engaged in interstate commerce,
Page 226 U. S. 573
and deceased was in its employ and was himself engaged in
interstate commerce, and that the cause of action is not governed
by the laws of Kansas, but arises out of the Federal Employers'
Liability Act of 1908. There were also a general denial of the
allegations of the petition, and an averment of contributory
negligence on the part of the deceased and of his fellow servants.
Upon the same day (January 6, 1911), the plaintiff filed her first
amended original petition, averring that she was the sole heir and
next of kin of Fred S. Wulf, deceased; that, at the time of the
filing of the original petition, there was no administration upon
his estate and no necessity for any; that, on January 4, 1911, she
was duly appointed temporary administratrix of his estate by the
County Court of Grayson County, Texas, a court of competent
jurisdiction, and qualified as such, with full power and authority
to prosecute this suit as party plaintiff, and had made application
to be appointed permanent administratrix.
"That there now exists no necessity for an administration upon
the estate of the said Fred S. Wulf unless the same should be
necessary for the sole purpose of prosecuting this suit as
administratrix of said decedent for the benefit of herself as the
surviving parent and next of kin of the said decedent, said
plaintiff being the next of kin and sole beneficiary of whatever
may be recovered in this suit. She therefore sues in her original
capacity as such sole beneficiary and next of kin, but, in the
event it shall be determined that she is not entitled to recover in
said capacity, then she asks that she be allowed to recover as
administratrix for her benefit, as aforesaid. Therefore she sues
both in her individual capacity and as administratrix, as
aforesaid."
The averment of diversity of citizenship was repeated, as were
those averments of the original petition that set forth the cause
of action. The amended petition further averred
"that, by virtue of both the laws of the State of Kansas, where
the said Fred S. Wulf
Page 226 U. S. 574
was killed, and the Acts of Congress, a right of action is
provided for injuries resulting in death in the manner and form and
in the occupation that deceased was engaged in at the time of his
death."
This amendment was allowed by the court, and an order was made
permitting the plaintiff to prosecute as the personal
representative of the deceased for her individual benefit, as well
as in her individual capacity. Thereafter, the defendant filed its
second amended answer, by which it excepted to that portion of the
amended petition making Sallie C. Wulf a party plaintiff because,
"under the Act of Congress known as the Employers' Liability Act,
she is not a proper party to said suit," excepted to that portion
making her a party as temporary administratrix, "because she was
not made a party as such administratrix at the time of the filing
of the original petition," and excepted to that portion seeking to
make her a party as administratrix because the amendment making her
a party in that capacity was made more than two years from the time
the alleged cause of action accrued, and for that the cause of
action, if any, was barred by the limitation of two years. There
was also a general denial of the allegations of fact in plaintiff's
petition contained, "except that this defendant says that, at the
time the said deceased was killed, he was engaged in interstate
commerce."
The exceptions being overruled, a trial was had upon the issues
of fact, and resulted in a verdict and judgment in favor of the
plaintiff (now defendant in error) for $7,000, which was affirmed
by the Circuit Court of Appeals for the Fifth Circuit, and the case
comes here by writ of error.
The judgment of the circuit court being founded upon the Federal
Employers' Liability Act, so that the jurisdiction of that court
was not dependent entirely upon the diversity of citizenship of the
parties, the judgment of the
Page 226 U. S. 575
circuit court of appeals was not made final by § 6 of the Evarts
Act, and thus (the matter in controversy exceeding $1,000), there
is a right to a writ of error from this Court. Act of March 3,
1891, 26 Stat. 828, c. 517, § 6; Judicial Code of March 3, 1911, 36
Stat. c. 231, pp. 1133, 1157, §§ 128, 241.
The argument for reversal rests wholly upon the mode of
procedure followed in the circuit court. It is contended that the
plaintiff's original petition failed to state a cause of action
because she sued in her individual capacity and based her right of
recovery upon the Kansas statute, whereas her action could legally
rest only upon the federal Employers' Liability Act of 1908, which
requires the action to be brought in the name of the personal
representative of the deceased; that the plaintiff's amended
petition, in which for the first time she set up a right to sue as
administratrix, alleged an entirely new and distinct cause of
action, and that such an amendment could not lawfully be allowed so
as to relate back to the commencement of the action, inasmuch as
the plaintiff's cause of action was barred by the limitation of two
years before she undertook to sue as administratrix.
It seems to us, however, that, aside from the capacity in which
the plaintiff assumed to bring her action, there is no substantial
difference between the original and amended petitions. In the
former, as in the latter, it was sufficiently averred that the
deceased came to his death through injuries suffered while he was
employed by the defendant railroad company in interstate commerce;
that his death resulted from the negligence of the company and by
reason of defects in one of its locomotive engines, due to its
negligence, and that, since the deceased died unmarried and
childless, the plaintiff, as his sole surviving parent, was the
sole beneficiary of the action. It is true the original petition
asserted a right of action under the laws of Kansas, without making
reference to the act of
Page 226 U. S. 576
Congress. But the court was presumed to be cognizant of the
enactment of the Employers' Liability Act, and to know that, with
respect to the responsibility of interstate carriers by railroad to
their employees injured in such commerce after its enactment, it
had the effect of superseding state laws upon the subject.
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 53.
Therefore, the pleader was not required to refer to the federal
act, and the reference actually made to the Kansas statute no more
vitiated the pleading than a reference to any other repealed
statute would have done.
It is true that, under the federal statute, the plaintiff could
not, although sole beneficiary, maintain the action except as
personal representative. So it was held in
American Railroad
Co. v. Birch, 224 U. S. 547.
But, in that case, there was no offer to amend by joining or
substituting the personal representative, and this Court, while
reversing the judgment, did so without prejudice to such rights as
the personal representatives might have. The decision left
untouched the question of the propriety of such an amendment as was
applied for and allowed in the case before us -- an amendment that,
without in any way modifying or enlarging the facts upon which the
action was based, in effect merely indicated the capacity in which
the plaintiff was to prosecute the action. The amendment was
clearly within § 954, Rev.Stat.
Nor do we think it was equivalent to the commencement of a new
action, so as to render it subject to the two years' limitation
prescribed by § 6 of the Employers' Liability Act. The change was
in form, rather than in substance,
Stewart v. Baltimore &
Ohio Railroad Co., 168 U. S. 445. It
introduced no new or different cause of action, nor did it set up
any different state of facts as the ground of action, and therefore
it related back to the beginning of the suit.
Texas &
Pacific Ry. Co. v. Cox, 145 U. S. 593,
145 U. S. 603;
Atlantic & Pacific R. Co.
v. Laird, 164
Page 226 U. S. 577
U.S. 393,
164 U. S. 395.
See also McDonald v. Nebraska, 101 F. 171, 177-178;
Patillo v. Allen-West Commission Co., 131 F. 680;
Reardon v. Balaklala Consol. Copper Co., 193 F. 189.
Reliance is placed by plaintiff in error upon
Union Pacific Ry.
Co. v. Wyler, 158 U. S. 285.
There, the action was commenced in a state court of Missouri and
afterwards removed to the United States circuit court. The original
petition was based upon the common law of master and servant, and
set up an injury to the plaintiff occurring in the State of Kansas
while he was in the employ of the defendant, averring that the
injury was due to the negligence of the defendant in employing and
retaining in its employ as fellow servant of the plaintiff one
Kline, an incompetent person, with knowledge of his incompetency;
afterwards plaintiff filed an amended petition, eliminating the
charge of incompetency on the part of Kline and the averment of
defendant's knowledge of such incompetency, and resting the cause
of action exclusively upon the negligence of Kline as a fellow
servant of plaintiff, averring that the employer was liable to the
plaintiff for the injury suffered by him through such negligence
because a right of action was given in such case by the law of
Kansas, where the accident occurred. This Court held that the
amendment introduced a substantially new cause of action, to which
the bar of the statute of limitations applied. But in that case, as
is made plain in the opinion delivered by MR. JUSTICE WHITE (now
CHIEF JUSTICE), the amended petition set up not only a different
state of facts, but a different rule of law as the ground of the
action, the original petition proceeding exclusively on the common
law rule which held a master liable who, with knowledge, employs or
retains an incompetent servant, and making no reference to the
Kansas statute, nor averring negligence on the part of the fellow
servant excepting so far as this might be inferred from the
averment of his incompetency; while the amendment
Page 226 U. S. 578
relied upon the fellow servant's mere negligence, together with
a statute of Kansas which made the master responsible for the
consequences of the negligence of a fellow servant. The action
having been commenced in a Missouri court which would not take
notice of the Kansas statute unless it were pleaded (
Babcock v.
Babcock, 46 Mo. 243), this Court held that the rule that the
federal courts take judicial notice of the laws of the several
states did not apply. Since, in the present case, the federal
statute did not need to be pleaded, and the amended petition set up
no new facts as the ground of action, the decision in the
Wyler case is not controlling.
Judgment affirmed.
MR. JUSTICE LURTON entertains doubts as to whether the two
years' limitation does not apply.