Southern Pacific Company v. Tomlinson/Opinion of the Court
This action is brought under provisions of a statute of the territory of Arizona copied from a statute of Texas upon the same subject. Rev. St. Ariz. 1887, tit. 36, §§ 2145-2155; Rev. St. Tex. 1879, §§ 2899-2909.

By this statute an action on account of injuries causing the death of any person may be brought against a railroad company, or other carrier of goods or passengers, for actual damages, when the death is caused by its negligence, or by the unfitness or gross negligence of its servants or agents; and for exemplary damages, also, when the death is caused by the willful act or omission or gross negligence of the defendant. Rev. St. Ariz. §§ 2145-2147.

The statute provides that '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 'may be brought by all the parties entitled thereto, or by one or more of them for the benefit of all,' and that, if they fail to bring it within six months after the death, 'it shall be the duty of the executor or administrator of the deceased to commence and prosecute the action, unless reques ed by all of the parties entitled thereto not to prosecute the same.' Sections 2149-2151.

If the sole plaintiff dies pending the action, and is the only person entitled to the benefit thereof, the action abates. But, if any person so entitled survives, the action does not abate by the death of the plaintiff, but any one or more of the persons so entitled may be made plaintiff, 'and the suit be prosecuted to judgment in the name of such plaintiff, for the benefit of the persons entitled.' Sections 2153, 2154.

The statute further provides that 'the jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict.' Section 2155.

The obvious intent and effect of these provisions is that the action is to be brought once for all; that it is to be prosecuted for the benefit of all the relatives mentioned, the husband or the wife, the children and the parents, of the deceased; and that any damages recovered are to belong to all those relatives, and to be shared among them in the proportions determined by the verdict of the jury. By the express terms of the statute, the action may be brought by all or any of them, but for the benefit of all. No one or more of them, less than all, can excuse the executor or administrator from bringing and prosecuting the action, if they do not. The action does not abate by the death of the one suing, but may be prosecuted by the survivors, if there are any; and the damages recovered are to be divided among all of them, in such shares as the jury shall fix by their verdict. The authority given for bringing and prosecuting the action in the name of any one or more of the persons entitled, for the benefit of all, avoids multiplicity of actions, and difficulties arising from nonjoinder of plaintiffs; but it gives the nominal plaintiff or plaintiffs no power to compromise or to release the rights of the other beneficiaries, or to lessen or alter the shares awarded by the jury.

This construction of the statute is in accord with the construction which, before its passage, had been given by the supreme court of Texas to the similar statute of that state. Railway Co. v. Bradley, 45 Tex. 171, 176, 179; March v. Walker, 48 Tex. 372, 376, 377; Railway Co. v. Moore, 49 Tex. 31, 45, 46; Railroad Co. v. Le Gierse, 51 Tex. 189, 201; Railway Co. v. Cowser, 57 Tex. 293; Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. See, also, Railway Co. v. Needham, 10 U.S. App. 339, 3 C. C. A. 129, and 52 Fed. 371.

In the present case the deceased left a widow, four children, and a father and mother. The jury returned a verdict for the plaintiff for $50,000, of which they awarded $8,000 to the widow, $8,000 to each child, and $5,000 to either parent of the deceased. After the defendant had moved for a new trial, the widow, in whose name alone the action was brought, filed a remittitur, by which she undertook to reduce her share to $6,000, the share of each child to $3,000, and the shares of the parents to $1 each, and the whole verdict to $18,002.

According to the decisions of the supreme court of Texas in Railway Co. v. Bradley and Railroad Co. v. Le Gierse, above cited, the widow could not compromise or release the rights even of her own minor children. She certainly could not release, in whole or in part, the rights of her father-in-law and mother-in-law.

The statute, indeed, as has been seen, creates but a single liability. The matter in controversy, as between the defendant, on the one side, and the plaintiff and the other persons for whose benefit the action is brought, on the other, is the whole amount of the damages found by the jury; and the defendant has no concern in the apportionment of damages among the persons entitled, provided that is done as the statute requires. Railway Co. v. Gentry, 16  up. Ct. 1104.

But the defendant has the right to object to a judgment apportioning the damages, not as lawfully divided by the jury, but as unlawfully fixed by the plaintiff of record, reducing to nominal damages the sums awarded by the jury to some of the persons entitled, and thereby leaving the defendant open to the danger of another suit by those persons to obtain the damages of which the present plaintiff has undertaken to deprive them. Railroad Co. v. Lewis, 162 U.S. 366, 379, 16 Sup. Ct. 831.

The opinion of the supreme court of the territory of Arizona, which, as required by section 949 of the Revised Statutes of the territory, was in writing and recorded, shows that that court not only 'inclined to the view that the jury was prompted, through sympathy for the widow and children, and out of the enlarged liberality of which juries in such cases are usually possessed, to award damages largely in excess of what the proofs warranted,' but that it considered that the damages awarded were clearly excessive, and that it was manifest from the record that but for the remittitur the judge before whom the trial was had would have ordered a new trial.

As this court now holds the remittitur to have been unauthorized and invalid, the proper order, without considering other questions argued at the bar, will be:

Judgment reversed, and case remanded to the supreme court of the territory, with directions to cause the verdict to be set aside and a new trial had. 

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