The proviso in § 6 of the Act of March 3, 1887, 24 Stat. 502, c.
373, does not limit the operation of § 3 of that act as corrected
by the Act of August 13, 1888, 25 Stat. 433, 436, c. 866, and a
circuit court of the United States may take jurisdiction of an
action against a receiver or manager of property appointed by it
without previous leave being obtained, although the action was
commenced before the enactment of the statute.
The jurisdiction exists because the suit is one arising under
the Constitution and laws of the United States.
A demurrer to a petition upon the ground that it does not set
out a cause of action without taking notice of the fact that the
suit is brought in the wrong district is a waiver of objection on
account of the latter cause.
The rule that an amended declaration which sets forth a new
cause of action is subject to the operation of a limitation coming
into force after the commencement of the action does not apply to
an amendment which sets forth the same cause of action as that set
forth originally.
Page 145 U. S. 594
A cause of action founded upon a statute of one state conferring
the right to recover damages for an injury resulting in death may
be enforced in a court of the United States sitting in another
state if it is not inconsistent with the statutes or public policy
of the state in which the right of action is sought to be
enforced.
This cause of action, founded upon the statute of Louisiana
conferring such right, is enforceable in Texas notwithstanding the
decisions of the courts of that state referred to in the opinion in
this case, those cases being in construction of the statute of
Texas on that subject, and not applicable to the Louisiana
statute.
A case should not be withdrawn from the jury unless the
conclusion follows as matter of law that no recovery can be had
upon any view which can properly be taken of the facts which the
evidence tends to establish.
This was an action brought by Mrs. Ida May Cox, a citizen of
Texas, in the United States Circuit Court for the Eastern District
of Texas, on the 3d of September, 1887, against John C. Brown and
Lionel L. Sheldon, as receivers of the Texas and Pacific Railway
Company, to recover damages for the death of her husband, Charles
Cox, resulting from their negligence while operating that company's
road. Judgment was rendered against Brown and Sheldon as such
receivers, and Sheldon having resigned as receiver, and his
resignation having been accepted by the court, Brown, as sole
receiver, prosecuted this writ of error. While the writ was
pending, Brown was discharged as receiver, and the railway company
was restored to the possession of its property, and this Court, in
November, 1889, with the consent of the parties, made an order
substituting the Texas and Pacific Railway Company as plaintiff in
error in lieu of Brown, receiver. This was done upon a
stipulation
"that the said Texas and Pacific Railway Company may be
substituted as plaintiff in error in the above-entitled cause now
pending undetermined upon writ of error in this court, such
substitution, however, not to affect any of the questions or
controversies presented by the record herein, and the questions and
controversies presented by the record are to stand for the decision
of this court the same as if such substitution had not been
made."
The petition stated that the railway company, its lines running
through Texas and Louisiana, and all its properties, were
Page 145 U. S. 595
put in the hands of receivers December 16, 1885, by order of the
Circuit Court for the Eastern District of Louisiana; that Brown and
Sheldon were appointed and qualified at once as receivers, and had
been ever since and were now such, and that Brown resided in the
County of Dallas, Texas, and Sheldon in the State of Louisiana;
that Cox was in their employment, January 6, 1887, as a freight
conductor, and received the injury which resulted in his death on
that day while attempting to make a coupling of cars, because of
the defective condition of the cross-ties and of the roadbed,
through the negligence of the receivers. The injury was alleged to
have been inflicted in the State of Louisiana, and it was claimed
that the plaintiff was entitled to recover under the law of that
state, which was set forth, as well as under that of the State of
Texas, it being averred that they were substantially the same.
These statutes are given, so far as necessary, in the margin.
*
Page 145 U. S. 596
The petition further stated that Cox left no child or children,
nor descendant of a child, nor father or mother, him surviving, but
only the petitioner, his wife and widow. It was also alleged that
the deceased suffered severe mental and physical pain from the time
he was injured until he died.
The defendants demurred, assigning as grounds that the petition
"does not show that this Court has jurisdiction of the cause as
between the plaintiff and the defendants; it does not show
jurisdiction of the persons," and that the petition "does not set
out a cause of action, because it shows that Chas. Cox, the husband
of the plaintiff, was killed in Louisiana, and not in the State of
Texas," and also answered denying the allegations of the petition
and charging contributory negligence. On the 16th of February,
1888, Mrs. Cox filed an amended petition reciting that she, "leave
of the court being first had, files this, her amended petition, and
amending her original petition." This pleading expanded the
allegations in reference to the appointment of the receivers by the
United States Circuit Court for the Eastern District of Louisiana,
and stated the entry and confirmation of the order of appointment
as receivers, under ancillary proceedings, in the Circuit Court for
the Eastern District of Texas, and averred that the court had
jurisdiction of subject matter and receivers under the laws of the
United States. It was further averred that Cox, in coupling the
cars, as it was his duty to do, on account of the drawhead and
coupling pin not being suitable for the purpose for which they were
to be used, he being ignorant thereof, and of the defective
condition of the tracks, was injured. The defendant filed a general
denial to the amended petition and pleaded the statute of
limitations.
The demurrer to the petition and demurrer or plea to the amended
petition were overruled, and the case came on for
Page 145 U. S. 597
trial before a jury upon the issues joined. Evidence was adduced
on both sides, and it was, among other things, admitted that the
defendants were appointed receivers of the Texas and Pacific
Railway Company by the Circuit Court for the Eastern District of
Louisiana, and with the powers alleged by plaintiff, and that an
ancillary bill was filed in the Circuit Court for the Eastern
District of Texas, by direction, in the same case, and orders
entered giving that court ancillary jurisdiction over the
cause.
A verdict was returned for $15,000, and the defendants moved for
a new trial, which, on plaintiff's having remitted the sum of
$5,000, was overruled, and judgment entered for $10,000, a
certified copy of which was directed to be forwarded to the clerk
of the Circuit Court for the Eastern District of Louisiana, and
called to the attention of that court. A motion in arrest was also
made and denied.
Fifteen errors were assigned, which question the action of the
court: (1) In maintaining jurisdiction; (2) in disallowing the plea
of the statute of limitations; (3) in holding the cause of action
enforceable in Texas; (4) in refusing to direct the jury to find
for the defendants; (5) in refusing to give to the jury on
defendant's behalf several specific instructions requested, not
material to be here set forth.
Page 145 U. S. 601
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The Texas and Pacific Railway Company is a corporation deriving
its corporate powers from acts of Congress, and was held in
Pacific Railroad Removal Cases, 111 U. S.
1, to be entitled, under the Act of March 3, 1875, to
have suits brought against it in the state courts removed to the
circuit courts of the United States on the ground that they were
suits arising under the laws of the United States. The reasoning
was that this must be so since the company derived its powers,
functions, and duties from those acts, and suits against it
necessarily involved the exercise of those powers, functions, and
duties as an original ingredient.
These receivers were appointed by the circuit court, and derived
their power from and discharged their duties subject to its orders.
Those orders were entered, and all action of the court in the
premises taken, by virtue of judicial power possessed and exercised
under the Constitution and laws of the United States.
In respect of liability, such as is set up here, the receiver
stands in the place of the corporation. As observed by MR. JUSTICE
BROWN, delivering the opinion of the court in
McNulta v.
Lochridge, 141 U. S. 327,
141 U. S.
331:
"Actions against the receiver are in law actions against the
receivership, or the funds in the hands of the receiver, and his
contracts, misfeasances, negligences, and liabilities are official,
and not personal, and judgments against him as receiver are payable
only from the funds in his hands."
Hence it has been often decided that the jurisdiction of the
court appointing a receiver is necessarily exclusive, and that
actions at law cannot be prosecuted against him except by leave of
that court.
Barton v. Barbour, 104 U.
S. 126;
Davis v. Gray,
16 Wall. 203;
Thompson v. Scott, 4 Dillon 508, 512.
This was the general rule in the absence of statute, but by the
third section of the Act of Congress of March 3, 1887, 24 Stat.
552, c. 373, as corrected by the Act of August 13, 1888, 25 Stat.
433, 436, c. 866, it is provided:
Page 145 U. S. 602
"That every receiver or manager of any property, appointed by
any court of the United States, may be sued in respect of any act
or transaction of his in carrying on the business connected with
such property without the previous leave of the court in which such
receiver or manager was appointed, but such suit shall be subject
to the general equity jurisdiction of the court in which such
receiver or manager was appointed, so far as the same shall be
necessary to the ends of justice."
And we are of opinion that although the injury was inflicted
January 6, 1887, the suit, which was commenced on the 3d of
September of that year, comes within the section.
McNulta v. Lochridge, supra, was an action brought in a
state court July 13, 1887, against the receiver of a railway, to
recover for the death of certain persons, alleged to have been
caused by his negligence in the operation of the road, on January
15, 1887. No leave to sue had been granted by the court of the
appointment of the receiver, but we held that section 3 applied,
and there was no foundation for the position that the receiver was
not liable to suit without such permission.
Section 6 of the act is as follows:
"That the last paragraph of section five of the Act of Congress
approved March third, eighteen hundred and seventy-five, entitled
'An act to determine the jurisdiction of circuit courts of the
United States and to regulate the removal of causes from state
courts, and for other purposes,' and section six hundred and forty
of the Revised Statutes, and all laws and parts of laws in conflict
with the provisions of this act, be, and the same are hereby,
repealed,
provided that this act shall not affect the
jurisdiction over or disposition of any suit removed from the court
of any state, or suit commenced in any court of the United States,
before the passage hereof, except as otherwise expressly provided
in this act."
It is argued that under this proviso, the receivership suit,
having been commenced before and being pending at the time of the
passage of the act, was excepted from its provisions, and that
leave to sue was still required. We do not think so. The proviso
was intended to prevent the loss of jurisdiction by reason of the
repeal of prior acts and parts of acts, but
Page 145 U. S. 603
it does not limit the operation of the express provisions of
section three.
As jurisdiction without leave is maintainable through the act of
Congress, and as the receivers became such by reason of, and
derived their authority from, and operated the road in obedience
to, the orders of the circuit court in the exercise of its judicial
powers, we hold that jurisdiction existed because the suit was one
arising under the Constitution and laws of the United States, and
this is in harmony with previous decisions.
Buck v.
Colbath, 3 Wall. 334;
Feibelman v.
Packard, 109 U. S. 421;
Bock v. Perkins, 139 U. S. 628. The
objections raised in respect of the matter of diverse citizenship
cannot therefore be sustained.
It is said further that jurisdiction over the receivers
personally was lacking because defendant Brown resided in the
Northern District of Texas and defendant Sheldon was an inhabitant
of Louisiana, and that under the act of 1887, the action could not
be instituted in a district whereof neither of the defendants was
an inhabitant. If the suit be regarded as merely ancillary to the
receivership, the objection is without force, but irrespective of
that, this immunity is a personal privilege which may be waived.
The defendants not only demurred, but answered, and the second
ground of demurrer was that the petition did not set out a cause of
action. Under such circumstances they could not thereafter
challenge the jurisdiction of the court on the ground that the suit
had been brought in the wrong district.
St. Louis Railway Co.
v. McBride, 141 U. S. 127;
Fitzpatrick Construction Co. v. Fitzgerald, 137 U. S.
98;
First Nat. Bank v. Morgan, 132 U.
S. 141.
The statutory limitation in Louisiana and in Texas upon the
right of action asserted in this case was one year, and that
defense was interposed to the amended petition, which was not filed
until that period had elapsed. It is put in argument upon two
grounds: (1) that jurisdiction did not appear by the original
petition; (2) that the amended petition set up a new cause of
action. Assuming that the first ground is open to consideration, as
brought to our attention, it is sufficient to say that, in the
light of the observations already
Page 145 U. S. 604
made, the fact that jurisdiction existed was sufficiently
apparent on the first pleading. As to the second ground, it is true
that if the amended petition, which may, perhaps, be treated as
equivalent to a second count in a declaration, had brought for ward
a new and independent cause of action, the bar might apply to it,
Sicard v.
Davis, 6 Pet. 124; yet, as the transaction set
forth in both counts was the same, and the negligence charged in
both related to defective conditions in respect of coupling cars in
safety, we are not disposed by technical construction to hold that
the second count alleged another and different negligence from the
first.
Counsel further urge with much earnestness that the cause of
action founded upon the statute of Louisiana conferring the right
to recover damages for an injury resulting in death was not
enforceable in Texas.
The action, being in its nature transitory, might be maintained
if the act complained of constituted a tort at common law, but, as
a statutory delict, it is contended that it must be justiciable not
only where the act was done, but where redress is sought. If a tort
at common law where suit was brought, it would be presumed that the
common law prevailed where the occurrence complained of transpired,
but if the cause of action was created by statute, then the law of
the forum and of the wrong must substantially concur in order to
render legal redress demandable.
In
The Antelope,
10 Wheat. 66,
23 U. S. 123,
Mr. Chief Justice Marshall stated the international rule with
customary force -- that "the courts of no country execute the penal
laws of another;" but we have held that that rule cannot be invoked
as applicable to a statute of this kind, which merely authorizes "a
civil action to recover damages for a civil injury."
Dennick v.
Railroad Company, 103 U. S. 11. This
was a case instituted in New York to recover damages for injuries
received and resulting in death in New Jersey, and it was decided
that a right arising under or a liability imposed by either the
common law or the statute of a state may, where the action is
transitory, be asserted and enforced in any court having
jurisdiction of such matters and of the parties.
Page 145 U. S. 605
And, notwithstanding some contrariety of decision upon the
point, the rule thus stated is generally recognized and applied
where the statute of the state in which the cause of action arose
is not in substance inconsistent with the statutes or public policy
of the state in which the right of action is sought to be
enforced.
The statutes of these two states on this subject are not
essentially dissimilar, and it cannot be successfully asserted that
the maintenance of jurisdiction is opposed to a settled public
policy of the State of Texas.
In
Willis v. Railroad Company, 61 Tex. 432, it was held
by the Supreme Court of Texas that suit could not be brought in
that state for injuries resulting in death inflicted in the Indian
Territory, where no law existed creating such a right of action.
The opinion goes somewhat further than this in expression, but in
that regard has not been subsequently adopted.
In
Texas & Pacific Railway v. Richards, 68 Tex.
375, it was said that while there was some conflict of decision, it
seemed to be generally held that a right given by the statutes of
one state would be recognized and enforced in the courts of another
state whose laws gave a like right under the same facts. In
St.
Louis, Iron Mountain &c. Railroad v. McCormick, 71 Tex.
660, the supreme court declined to sustain a suit in Texas by a
widow for damages for the negligent killing of her husband in
Arkansas, for the reason that the statutes of Arkansas were so
different from those of Texas in that regard that jurisdiction
ought not to be taken, but the court indicated that it would be a
duty to do so in transitory actions where the laws of both
jurisdictions were similar. The question, however, is one of
general law, and we regard it as settled in
Dennick v. Railroad
Company supra.
But it is insisted that the general rule ought not to be
followed in this case because the statute of Texas giving a right
of action for the infliction, through negligence, of injuries
resulting in death, does not apply to persons engaged as receivers
in the operation of railroads, and reference is made to
Turner
v. Cross, decided February 5, 1892, and reported in
Page 145 U. S. 606
advance of the official series in 18 S.W. 578, (followed by
Railway Company v. Collins, decided March 22, 1892, and
furnished to us in manuscript), in which the Supreme Court of Texas
so held upon the ground that a receiver is not a "proprietor,
owner, charterer, or hirer" of the railroad he has in charge, and
so not within the terms of the Texas statute. Without questioning
the correctness of this view, still it would be going much too far
to attribute to these decisions the effect of a determination that
an action could not be maintained against receivers in the
enforcement of a cause of action arising in Louisiana, whose
statute is not open to such a construction.
We are brought, then, to consider whether reversible error
intervened in the conduct of the trial. The contention on this
branch of the case is chiefly that the court should have directed a
verdict for the defendants because there was no evidence of
negligence on their part, while there was evidence of contributory
negligence on the part of Cox.
The case should not have been withdrawn from the jury unless the
conclusion followed as matter of law that no recovery could be had
upon any view which could be properly taken of the facts the
evidence tended to establish.
Dunlap v. Northeastern
Railroad, 130 U. S. 649;
Kane v. Northern Central Railway, 128 U. S.
91;
Jones v. East Tennessee, Virginia & Georgia
Railroad, 128 U. S. 443.
We think the evidence given in the record tended to establish
that the coupling apparatus and the track were in an unsafe and
dangerous condition, that the injury happened in consequence, and
that these defects were such as must have been known to the
defendants under proper inspection, and unless they were
negligently ignorant. No conflict appears as to the condition of
the roadbed in the railroad yard, but there was testimony on
defendants' behalf indicating that the coupling apparatus was not
substantially defective.
The bill of exceptions does not purport to contain all the
evidence, and it would be improper to hold that the court should
have directed a verdict for defendants for want of that which may
have existed.
Page 145 U. S. 607
No exception was taken to the admission or exclusion of
evidence, and none to any part of the charge of the court, which is
given in full. Among other things, the court instructed the
jury:
"If you shall find either that the roadbed was not unsafe or
dangerous, although not the best character, or that the coupling
pin used was not unsafe or dangerous, although not as well adapted
for use as a round pin, then you will find for defendant."
"And again, if you shall find from the evidence that both the
roadbed and coupling pin were unsafe and dangerous, yet if you
shall find from the evidence that neither of these causes resulted
in the death of Chas. Cox, nor were the proximate causes producing
the injuries whereof he died, then you will find for the
defendant."
"It is incumbent on the plaintiff, before she can recover, not
only to prove that the defects complained of existed, but also that
they or one of them were the cause of death."
"If the death was the result of accident, misadventure, or the
want of care or prudence on the part of deceased, or other cause
not complained of, plaintiff cannot recover."
"You must ascertain the true nature of the case and the actual
cause of death from the evidence as adduced before you, and render
your verdict in accordance therewith."
Twelve specific instructions were asked on behalf of defendants,
and refused, and exceptions taken, but, except as stated, they are
not insisted upon in argument, and we think they were substantially
covered by the charge as given.
Some emphasis is put upon the fact that the car which inflicted
the injury was from another road, but that circumstance does not
call for special mention in the view we take of the case, and does
not seem to have been relied on in the court below. The circuit
court correctly applied well settled principles in the disposition
of the questions of law arising upon the trial, and it would
subserve no useful purpose to retraverse, in exposition of those
principles, ground so often covered.
Washington &
Georgetown Railroad v. McDade, 135 U.
S. 554;
Northern Pacific Railroad v. Herbert,
116 U. S. 642;
Page 145 U. S. 608
Island &c. Coasting Co. v. Tolson, 139 U.
S. 551;
Kane v. Northern Central Railway,
128 U. S. 91;
Hough v. Railway Co., 100 U. S. 213;
Indianapolis &c. Railroad v. Horst, 93 U. S.
291.
Judgment affirmed.
*
"Texas, 2 Sayles' Civil Stats. pp. 26, 27:"
"Art. 2899. An action for actual damages on account of injuries
causing the death of any person may be brought in the following
cases:"
"1. 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."
"2. When the death of any person is caused by the wrongful act,
negligence, unskillfulness, or default of another."
"Art. 2903. The action shall be for the sole and exclusive
benefit of the surviving husband, wife, children, and parents of
the person whose death shall have been so caused, and the amount
recovered therein shall not be liable for the debts of the
deceased."
"Art. 2904. The action may be brought by all of the parties
entitled thereto, or by anyone or more of them for the benefit of
all."
Louisiana, Voorhies' La.Civil Code, 1875, p. 427; Acts La. 1884,
p. 94:
"Art. 2315. Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it. The
right of this action shall survive in case of death in favor of the
surviving minor children or widow of the deceased, or either of
them, and, in default of these, in favor of the surviving father
and mother, or either of them, for the space of one year from the
death. The survivors above mentioned may also recover the damages
sustained by them by the death of the parents or child, or husband
or wife, as the case may be."
"Art. 2316. Every person is responsible for the damage he
occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill."
"Art. 2317. We are responsible not only for the damage
occasioned by our own act, but for that which is caused by the act
of persons for whom we are answerable, or of the things which we
have in our custody."
