162 N.W. 933 (S.D. 1917), 4129, Tobin v. Bruce

Docket Nº:4129.
Citation:162 N.W. 933, 39 S.D. 64
Opinion Judge:McCOY, J.
Party Name:TOBIN v. BRUCE et al.
Attorney:N. J. Cramer, of Yankton, for appellant. B. I. Salinger, of Sioux City, Iowa, and Joseph Janousek, of Yankton, for respondents.
Case Date:May 26, 1917
Court:Supreme Court of South Dakota

Page 933

162 N.W. 933 (S.D. 1917)

39 S.D. 64



BRUCE et al.

No. 4129.

Supreme Court of South Dakota

May 26, 1917

         Appeal from Circuit Court, Yankton County; R. B. Tripp, Judge.

         Action by William Tobin, Sr., against W. L. Bruce, as administrator of the estate of John T. Tobin, deceased, and Catherine Tobin. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

         N. J. Cramer, of Yankton, for appellant.

         B. I. Salinger, of Sioux City, Iowa, and Joseph Janousek, of Yankton, for respondents.

         McCOY, J.

         One John T. Tobin received an injury resulting in his death while he was in the employment of the Chicago, Milwaukee & St. Paul Railway Company as a brakeman on a train engaged in carrying interstate commerce. He did not leave surviving him a wife or any children, but left the plaintiff, his father, and the defendant Catherine Tobin, his mother, as his surviving parents. The defendant Bruce was appointed administrator of the estate of said John T. Tobin, deceased. Under the provisions of the federal Employers' Liability Act the said railway company became liable for damages caused by the death of said employé, and by virtue of a settlement for such liability the said railway company paid to said administrator the sum of $4,300. Plaintiff brought this suit to recover and to establish his right to one-half of said damages. The defendant Catherine Tobin answered, claiming the whole of said damages, and that plaintiff had no right to any portion thereof. The defendant Bruce, as administrator, concedes that he has possession of said $4,300, and that he is ready and willing to pay the same to such person or persons as the court shall direct. Findings and judgment were in favor of Catherine Tobin, and the plaintiff appeals.

         The trial court, among other things, found that said damages were paid to said administrator for the beneficiaries entitled to receive the same pursuant to law; that the plaintiff, the father of said decedent, is about 71 years of age; that said deceased was 24 years of age at the time of his death; that said deceased never at any time had contributed to the support of his father, and that the father was never dependent on his said son; that said son did not live with his father at the time of his death, and at no time had given

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his father any money or necessaries of life; that the father at the time of the death of the son supported himself, and did not sustain any pecuniary loss because of the death of said son; that for a period of about seven years prior to the death of the son the father and mother lived separate and apart, and during said time plaintiff did not contribute to the support of the mother; that in 1908 said son gave all his earnings to his mother; that in 1909 he left home, but still continued to contribute thereafter to his mother's support up until the time of his death in the month of November, 1914. Upon these findings of fact and as a conclusion of law the court found that the suit of plaintiff for a share in the proceeds of said damages, or any part thereof, should be dismissed, and that plaintiff has no cause of action against said administrator or against Catherine Tobin.

         The appellant assigns as error the finding that plaintiff sustained no pecuniary loss by reason of the death of his son, and...

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