Argument for Defendant in Error.

227 U. S.

Unless the provisions of the particular statutes are distinctly and clearly to the contrary, it is the rule of the Federal and many state courts that so long as the death of the injured party is occasioned by acts within the statute, it is immaterial whether or not the death and injury are simultaneous. Roach v. Imperial Min. Co., 7 Fed. Rep. 698; Roach v. Cons. Imp. M. Co., 7 Sawy. 224, construing Nevada law; Matz v. Chicago. &c. R. Co., 85 Fed. Rep. 180, construing Missouri law; Sternenberg v. Mailhos (C. C. A.), 99 Fed. Rep. 43, construing Texas law; St. Louis &c. R. Co. v. Dawson, 68 Arkansas, 1; Murphy v. N. Y. &c. R. Co., 38 Connecticut, 184; Mallot v. Shimer, 153 Indiana, 35, construing Illinois law; Conners v. Burlington &c. R. Co., 71 Iowa, 490; Warden v. Humeston &c. R. Co., 72 Iowa, 201; Brown v. Buffalo &c. R. Co., 22 N. Y. 191; Perham v. Portland Elec. Co., 33 Oregon, 451; Internat'l &c. R. Co. v. Kindred, 57 Texas, 491; Boyden v. Fetchbury, &c. R. Co., 70 Vermont, 125; Van Amberg v. Vicksburg &c. R. Co., 37 La. Ann. 651; Hamilton v. Morgan's L. &c. R. Co., 42 La. Ann. 824; Legg v. Britton, 64 Vermont, 652.

Of course, where States have so-called "survival acts" and a statute creating a new cause of action (as in Michigan) it would appear to be a salutary rule that an administrator can recover damages under the latter statute only if death is instantaneous, and if the death is not instantaneous he can recover under the former statute. Sweetland v. Chicago &c. R. Co., 117 Michigan, 329; Dolson v. Lake Shore &c. R. Co., 128 Michigan, 444; Kyes v. Valley Telephone Co., 132 Michigan, 281; Oliver v. Houghton S. R. Co., 134 Michigan, 367. Such statutes are clearly distinguishable from the one under consideration; also such statutes as exist in Maine (Sawyer v. Perry, 88 Maine, 42). In truth, the rule in Michigan and Maine seems to be and justifiably is (by reason of the language of the acts) at variance with the rule elsewhere.

To read into this act (and it is necessary so to do to sus

tain the propositions in the second and third assignments of error) the word "instantaneous" or "immediate" death would change the plain and unambiguous words of the statute and nullify the beneficent purposes for which it was enacted by the Congress.

There was no error in the instruction that in assessing the pecuniary damages which the widow sustained the jury might consider the relation that was sustained by husband and wife, and draw upon their experience as men, what it would have reasonably been worth to the wife in dollars and cents, to have had during their life together, had he lived, the care and advice of her husband. Nor. Pac. R. R. Co. v. Freeman, 83 Fed. Rep. 82; Felt v. Puget Sound Co., 175 Fed. Rep. 177; Bollinger v. St. Paul & Duluth R. R. Co., 35 Minnesota, 418; Chattanooga R. R. Co. v. Clowdis (Ga.), 17 S. E. Rep. 88; Mo. Pac. R. Co. v. Bond, 2 Tex. Civ. App. 104.

As to children whose parents are killed, see Tilley v. P. R. R. Co., 29 N. Y. 252; St. Louis &c. R. Co. v. Haddry, 57 Arkansas, 306; Stoher v. St. L., I. M. & S. Ry. Co., 91 Missouri, 509; Walker v. McNiell, 17 Washington, 582.

If the care and guidance and advice of the father is of pecuniary value to the children, likewise is the care and advice of the husband of value to his wife.

MR. JUSTICE LURTON delivered the opinion of the court.

This was an action under the Employers' Liability Act of April 22, 1908, to recover damages for the wrongful death of the intestate, an employé in the service of the railroad company. The constitutionality of the act was drawn in question by the plaintiff in error in the court below and this afforded ground for bringing the case directly to this court. Since the allowance of the writ of error all of the constitutional questions have been decided adversely to the plaintiff in error. Mondou v. Railroad Company, 223 U. S. 1. But this does not justify

our dismissing the case, since the constitutional questions which gave the right to bring it here were not foreclosed when the writ was allowed, and we, therefore, have jurisdiction to consider other assignments of error.

These relate to the construction of the act and the measure of damages thereunder. Sections 1 and 2 of the act of April 22, 1908, 35 Stat. 65, c. 149, and § 2 of the amendatory act of April 5, 1910, 36 Stat. 291, c. 143, are set out in the margin.1

1 SEC. 1. That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children' of such employé; and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés 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.

SEC. 2. 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 by such carrier in any of said jurisdictions, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés 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 2 of the Act of April 5, 1910:

That said Act be further amended by adding the following section as section nine of said Act:

This case, however, involves only a construction of the act prior to the amendment referred to.

The decedent survived his injuries for several hours. His personal representative has brought this action not for the injury suffered by his intestate, but for the loss suffered by his widow as a consequence of his wrongful death.

For the railroad company it has been argued that the fact that the injured employé survived his injuries for several hours operates to extinguish its liability for both the wrongful injury and the death which ensued. The view of counsel seems to be that the act declared a single liability and constituted a cause of action in behalf of the injured person if he survived, or, in case his death was instantaneous, a cause of action for the benefit of the specified dependent relatives surviving. This is a narrow interpretation of the act and would operate to defeat all liability unless the injured person should survive long enough to conduct his action to a recovery.

We think the act declares two distinct and independent liabilities, resting, of course, upon the common foundation of a wrongful injury, but based upon altogether different principles. It plainly declares the liability of the carrier to its injured servant. If he had survived he might have recovered such damages as would have compensated him for his expense, loss of time, suffering and diminished earning power. But if he does not live to recover upon his own cause of action, what then? Does any right of action survive his death and pass to his representative? This is a question which depends upon the statute.

SEC. 9. That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, but in such cases there shall be only one recovery for the same injury.

VOL. CCXXVII-5

1

We may not piece out this act of Congress by resorting to the local statutes of the State of procedure or that of the injury. The act is one which relates to the liability of railroad companies engaged in interstate commerce to their employés while engaged in such commerce. The power of Congress to deal with the subject comes from its power to regulate commerce between the States.

Prior to this act Congress had not deemed it expedient to legislate upon the subject, though its power was ample. "The subject," as observed by this court in Mondou v. Railroad Co., 223 U. S. 1, 54, "is one which falls within the police power of the State in the absence of legislation by Congress." Nashville, C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96, 99. By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employés injured while engaged in interstate commerce. This exertion of a power which is granted in express terms must supersede all legislation over the same subject by the States. Thus, in Gulf, Colorado & Santa Fe Ry. v. Hefley, 158 U. S. 98, 104, it was said, in reference to state legislation touching freight rates upon interstate freight which conflicted with the legislation of Congress upon the same subject, that:

"Generally it may be said in respect to laws of this character that, though resting upon the police power of the State, they must yield whenever Congress, in the exercise of the powers granted to it, legislates upon the precise subject-matter, for that power, like all other reserved powers of the States, is subordinate to those in terms conferred by the Constitution upon the Nation. 'No urgency for its use can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.' Henderson v. New York, 92 U. S. 259, 271. 'Definitions of the police power must, however, be taken, subject to the condition that the State cannot, in its exercise,