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224 U.S.

Argument for Plaintiff in Error.

AMERICAN RAILROAD COMPANY OF PORTO

RICO v. BIRCH.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES

FOR PORTO RICO.

No. 224. Submitted April 24, 1912.-Decided May 13, 1912.

The Employers' Liability Act of 1908 expressly applies to, and is in

force in, Porto Rico; but quære, 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 re

covery 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 main

tain 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 Porto Rico Fed. Rep. 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.

Mr. N. B. K. Pettingill and Mr. F. L. Cornwell for plaintiff in error:

Although the judgment below was for less than $5,000, this court has jurisdiction under $ 35 of the Foraker Act.

The present case comes under both subdivisions of the section. If it came from the Supreme Court of one of

Argument for Plaintiff in Error.

224 U. S.

the Territories the writ would lie, because the jurisdiction of the court below did not depend upon the character of the parties but upon the character of the cause of action as arising under an act of Congress (the Employers' Liability Act of April 22, 1908). Royal Ins. Co. v. Martin, 192 U. S. 149, 159.

As plaintiff's claim was based upon an act of Congress and as defendant contended that plaintiff was not the party authorized by that act to sue and was overruled, it claimed a right under a statute of the United States which was denied. Serrales v. Esbri, 200-U. S. 103, 109.

The right of action is limited by the statute to the personal representative of deceased.

The plaintiff below alleges that she is the widow of the deceased, that she and her son are his only heirs, and demands the recovery in her character as widow. The company distinctly raised the question of her right to sue in that capacity under that statute. Thus the construction of the provision of the statute above quoted was directly challenged.

While the purpose of the statute is doubtless remedial and it is to be given a liberal construction consistent with its terms to effectuate that purpose, there is no place for construction in the technical sense because of the absence of ambiguity. Hamilton v. Rathbone, 175 U.S. 414, 419; Dewey v. United States, 178 U. S. 510, 521.

When suit was first begun neither letters of administration nor a declaration of heirship had been obtained, and the latter was obtained after the suit was begun and admitted in evidence at the trial.

In selecting the personal representative instead of the heirs of the deceased or the specified beneficiary as the proper party to bring the suit, Congress probably intended to mark the logical distinction between providing for the survival of a cause of action existing in the injured party up to the time of death and for the creation of a new cause

224 U. S.

Argument for Defendants in Error.

of action arising in the representative from the moment of death. Midland R. R. Co. v. Fulgham, 104 C. C. A. 151; Walsh v. N. Y., N. H. & H. R. Co., 173 Fed. Rep. 494.

While there is no decision of any Federal court construing this very statute since its enactment, see as to similar statutes, Lake Erie R. Co. v. Charman, 161 Indiana, 95; Louisville &c. Co. v. Trammel, 93 Alabama, 350; Cleveland &c. R. Co. v. Osgood, 73 N. E. Rep. 285; Peers v. Nevada W. Co., 119 Fed. Rep. 400.

The provision placed by Congress in the statute was not a new departure, but the adoption of a policy already fixed in the laws of several of the States, hence it is logical to presume Congress had in mind the construction given to these similar provisions of the state statutes. See Illinois C. R. Co. v. Barron, 5 Wall. 90; Sou. Pac. Co. v. Tomlinson, 163 U. S. 369; Stewart v. B. & 0. R. Co., 168 U. S. 445; Chesapeake R. Co. v. Dixon, 179 U. S. 131.

The Safety Appliance Acts of Congress have not been made applicable to Porto Rico, and the court below erred in directing the jury to make such application, and thereby deprived the company to that extent of the benefit of contributory negligence on the part of the deceased. See New York v. Bingham, 211 U. S. 468.

The instructions as to the measure of damages were

erroneous.

Mr. Willis Sweet for defendants in error:

This court has no jurisdiction of this appeal. No right was denied defendant in the lower court. Royal Ins. Co. v. Martin, 192 U. S. 149, is not applicable.

The jurisdiction of the lower court depended upon diverse citizenship and the amount in controversy, and of this court on the amount in controversy.

Serrales v. Esbri, 200 U. S. 103, is not applicable; that case did not involve the right of the plaintiff in error under a United States statute.

Argument for Defendants in Error.

224 U. 8.

The defendant in the case at bar has not been deprived of any right, and neither the Constitution, nor a treaty, nor a right of defendant, under any United States statute has been questioned. Plaintiffs had capacity to sue under the statute. The record shows that there was no estate of any kind. There was no need for plaintiffs to go through the farce of having an administrator appointed, when there was not one dollar in the world, real or personal, to be administered.

Even though the court erred in holding that the plaintiffs had “capacity to sue," it is not reversible error in this case in the absence of a right taken from defendant, and the judgment being under five thousand dollars. Whether or not the error, if error it was, would have been fatal had the judgment exceeded five thousand dollars need not be discussed.

The National Safety Appliance Act is in force in Porto Rico.

The act of 1908, under which this action was brought, has for its purpose, and for its exclusive purpose,

the further protection of employés of railroad companies. If it did not refer to the Safety Appliance Act, what could have been the object of using it in this statute. It must have referred to the Safety Appliance Act, as appears from § 1 of the act of 1893. See 6 Fed. Stats. Ann. 752.

Obviously the purpose of this statute is the protection of the lives and limbs of men, and such statutes, when the words fairly permit, are so construed as to prevent the mischief and advance the remedy. Chicago, M. & St. P. Ry. Co. v. Voelker, 129 Fed. Rep. 522, 527.

It is obvious that the statute was so intended, because it says so.

The act of 1908 is very drastic in its terms. It does away entirely with the old principle of the common law that if the person injured was guilty of contributory negligence he could not recover åt all, and that if the

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jury find that the person injured or killed was guilty of contributory negligence he must, nevertheless, have judgment, the jury substracting from the full sum to which he would be entitled a sum “in proportion to the amount of negligence attributable to such employé.”

Porto Rico is brought within the terms of the act by direct provision. And how can the act mean less than that the Safety Appliance Act is applicable in Porto Rico when Congress declares, in language as broad as could be employed, that under this act of 1908, contributory negligence shall not be permitted as a defense by any railroad company that has failed to adopt those appliances.

As to the measure of damages, a party will not receive consideration in the appellate court when the error complained of did not do him any injury.

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 conse

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