Panama Railroad v. Bosse

delivered the opinion of the court.

This is an action for personal injuries and consequent suffering alleged to have been caused, on July 3, 1916, by the Railroad Company’s chauffeur’s negligent driving of a motor omnibus at an excessive rate of speed in a crowded thoroughfare in the Canal Zone. The suit was brought in the District Court of the Canal Zone. The defendant, the plaintiff in error, demurred to the declaration generally, and also demurred specifically to that part that claimed damages for pain. The demurrer was overruled

The main question in the case is whether the liability of master for servant familiar to the common law can be applied to this accident arising in the Canal Zone. Subordinate to that is the one already indicated, whether there can be a recovery for physical pain. There is some slight attempt also to argue that the defendant’s négli-gence was not the immediate cause of the injury, but as that depended upon the view that the jury might take of the facts and as there was evidence justifying the verdict, we shall confine ourselves to the two above-mentioned questions of law.

By the Act of Congress of April 28, 1904, c. 1758, § 2, 33 Stat. 429 , temporary powers of government over the Canal Zone were vested in such persons and were to be exercised in such manner as the President should direct. An executive order of the President addressed to the Secretary of War on May 9, 1904, directed that the power of the Isthmian Commission should be exercised under the Secretary’s direction. The order contained this passage, “The laws of the land, with which the inhabitants are familiar, and which were in force on February 26, 1904, will continue in force in the canal zone . . . until altered or annulled by the said commission;” with power to the. Commission to legislate,' subject to approval by the Secretary. .This was construed to keep in force the Civil Code of the Republic of Panama, which was translated into English and pub

But there are other facts to be 'taken into account before a decision can be reached. On December 5, 1912, acting under the authority of the befor'e-mentioned Act of August 24, 1912, § 3, the President declared' all the land 'within the. limits of the Canal Zone to be necessary for the construction &c. of the Panama Canal and directed the Chairman of the Isthmian Commission to take possession of it, with provisions for the extinguishment of all adverts claims and titles. It is admitted by the plaintiff in error that th.e Canal Zone at the present time is peopled only by the employees of the Canal, the Panama Railroad, and the steamship lines and oil companies permitted to do business in the Zone under license. If it be true that the Civil Code would have been construed to exclude’•'the defendant’s liability in the present case if the Zone had remained within the jurisdiction of Colombia it does not follow that the liability is no greater as things stand! now. . The President’s order continuing the law then in force was merely the embodiment of the rule that a change of sovereignty does not put an end to existing private law, and the ratification of that order by the Act of August 24, 1912, no more fastened upon the Zone a specific interpretation of the former Civil

As early as 1910 the Supreme Court of the Canal Zone announced that it would look to the common law in the construction of the Colombia statutes, Kung Ching Chong v. Wing Chong, 2 Canal Zone Sup. Ct. Rep. 25, 30; and following that announcement, in January, 1913, held that “at least so far as the empresarios of railroads are concerned” the liability of master for servant would be maintained in the Zone to the same extent as recognized by the common law. Fitzpatrick v. Panama R. R. Co., id., 111, 121, 128. The principle certainly was not overthrown by the Act, of 1912. It is not necessary to dwell upon the drift toward the common-law doctrine noticéable in some civil-law jurisdictions at least, or to consider how far we should go if the language of the Civil Code were clearer than it is. It is enough that the language is not necessarily inconsistent with the common-law rule. By Art. 2341, in the before-mentioned translation, “He who shall have been guilty of an offense or fault, which has caused another damage, is obliged to repair it, without

We are satisfied that it would be a sacrifice of substance to form if we should reverse a decision, the principle of which has been accepted by all the judges accustomed to deal with the locality, in deference to the possibility that a different interpretation might have been reached if the Civil Code had continued to regulate a native population and to be construed by native courts. It may be that, they would not have distinguished between a negligent -act done in the performance of the master’s business and a malicious one in which the servant went outside of the scope of that for which he was employed, But we are by no means sure that they would not have decided as we decide. At all events we are of opinion that the ruling was correct. As we do not rely for our conclusion upon a

In view of our conclusion upon the main point but little néed be said with regard to allowing pain to be considered in fixing the damages. It cannot be said with certainty that the Supreme Court of the Zone was wrong in holding that under the Civil Code damages ought to be allowed for physical pain. Fitzpatrick v. Panama R. R. Co., 2 Canal Zone Sup. Ct. Rep. 111, 129, 130; McKenzie v. McClintic-Marshall Construction Co., id., 181, 182. Physical pain being a substantial and appreciable part of the wrong done, allowed for in the customary compensation which the people of the Zone have' been awarded in their native courts, it properly was allowed here.

Judgment affirmed.