Gulf, M. & N. R. Co. v. Simmons

• Decision Date: 25 October 1926
• Docket Number: 25656
• Citation: 144 Miss. 350,109 So. 857
• Parties: GULF, M. & N. R. CO. v. SIMMONS. [*]
• Court: Mississippi Supreme Court

109 So. 857

144 Miss. 350

GULF, M. & N. R. CO. v. SIMMONS. ^[*]

No. 25656

Supreme Court of Mississippi

October 25, 1926

Division B

1 DEATH.

Recovery cannot be had under common law for death of one having no beneficiaries with reasonable expectation of receiving pecuniary benefits from him in future.

2 DEATH.

Under federal Employers' Liability Act (U. S. Comp. St sections 8657, 8665), beneficiaries of railroad employee killed in interstate commerce cannot recover for death, in absence of showing of reasonable expectation of pecuniary aid from deceased in future.

3. STATES.

Where Congress has by legislation occupied particular field permitted under United States Constitution, all state laws on subject are displaced.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Action by A. L. Simmons, administrator of the estate of T. L. McDaniel, against the Gulf, Mobile & Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

Welch & Cooper, for appellant.

The peremptory instruction should have been granted because there is no proof that the children and grandchildren of deceased were damaged. The court will bear in mind that the record shows without dispute that appellant and McDaniel were at the time of the injury and death engaged in interstate commerce and that appellant is a common carrier by railroad of passengers and freight; that deceased was an employee. The Federal Employers' Liability Act controls.

The whole case on the reasonable expectancy of pecuniary benefits accruing to the children and grandchildren shows that up to the time Mrs. Knobel, his daughter, was eighteen and Willie, his son, fifteen, deceased at times would come up and give them money but no stipulated amount. In the case of Willie, nineteen years had elapsed. He had married and established a home of his own. He does not attempt to say that during those nineteen years a cent had been given to him.

In the case of Mrs. Knobel, his daughter, Mildred, six years had elapsed. She had in the meantime married. Not one word of any advance or contribution is shown to have been made by deceased to her after she reached the age of eighteen. As to the grandchildren, there is no mention of any character of any contribution at any time. In fact one had been adopted by another family.

Yet the jury awarded Willie the sum of three thousand eight hundred and thirty-three dollars and thirty-three cents. It awarded Mrs. Knobel a like sum and gave to the boy and girl grandchildren one thousand nine hundred and seventeen dollars and one thousand nine hundred and sixteen dollars respectively.

The supreme court of the United States in R. R. Co. v. Vreeland, 227 U.S. 59, L.Ed. 417, said: "There must, however, appear some reasonable expectation of pecuniary assistance or support of which they have been deprived." See, also, Railroad Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456; Gulf R. R. Co. v. McGinnis, 228 U.S. 173, 57 L.Ed. 785.

The Interstate Commerce Act and the decisions of the supreme court of the United States have been interpreted by various state courts and we give here the result of our investigations. See, Fagorty v. Railway Co., 85 Wash. 90, 147 P. 652; Hines v. Walker (Texas), 225 S.W. 837; Davis v. Wright, 218 S.W. 26; C. & O. R. R. Co. v. Dwyer, 157 Ky. 590, 163 S.W. 752; Bennet v. Atchison R. R. Co. (Iowa), 183 N.W. 224; Nashville Ry. Co. v. Anderson, 134 Tenn. 666, 185 S.W. 677.

These authorities establish beyond question that dependency or reasonable grounds to expect pecuniary benefits must be shown and, too, the value of such contributions or support. Neither of these is shown in the case at bar; yet the jury returns a verdict for approximately the full amount of the earnings of deceased during his expectancy.

We submit that on each of the grounds stated the verdict should have been directed for appellant.

G. W. Hosey and Jeff Collins, for appellee.

Appellant argues that a peremptory instruction should have been given for the reason that there was no proof that the children and grandchildren of the deceased were damaged by the death of the deceased. There is no authority cited by counsel in his brief where either a state court or the United States supreme court has held that the children of a decedent could not recover the reasonable net earnings of the deceased during his life expectancy.

All the authorities cited by counsel use the words "reasonable expectations of pecuniary benefits," and the supreme court of the United States in the case of Michigan Cent. R. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, gives the meaning of the word "pecuniary." See also New Deemer Mfg. Co. v. Alexander (Miss.), 85, So. 104, construing section 501, Hemingway's Code, A case directly in point is John Howard, Administrator, v. Delaware & Hudson Canal Co., 40 F. 195, 6 L. R. A. 75. See, also, I. C. R. R. Co. v. Barron, 72 U.S. 5, Wall. 96, 18 L.Ed. 591.

These three cases have decided this proposition according to our contention, and we have not been able to find any decision to the contrary.

Welch & Cooper, for appellant, in response to court's question.

Where there is no proof of dependency or contributions by a decedent killed in interstate commerce, are the beneficiaries under the federal Employers' Liability Act entitled to receive as damages the amount which the proof shows the decedent would probably have accumulated during his expectancy and which the beneficiaries would probably receive as heirs of his estate?

We submit that under this act there can be no such recovery, Mich, Cent. R. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, shows clearly that the damages recoverable are those "pecuniary benefits" which the children in this would have received in the lifetime of the deceased. See, also, American R. Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456, 33 S.Ct. 224; Gulf C. & St. F. R. Co. v. McGinnis, 228 U.S. 173, 57 L.Ed. 785, 33 S.Ct. 426.

The supreme court of Georgia has specifically answered the court's question in Southern R. Co. v. Hill, 139 Ga. 549, 77 S.E. 803. There can be no recovery by an adult child unless there is proof of contributions. The cases cited confirm this.

G. W. Hosey and Jeff Collins, for appellee, in response to court's question.

Under the Federal Employers' Liability Act are the beneficiaries confined to a recovery of contributions which they had a reasonable right to expect from the deceased during his lifetime? So far as the supreme court of the United States is concerned this question has not been presented to it for decision. We will, therefore, have to look to common sense, high justice and the decisions of other courts for the light to decide this question. See 17 C. J., p. 1318 and p. 1320, note 30; Jennings v. Grand Trunk R. R. Co., 15 Ont. A 477; Oldfidd, v. N. Y. R. R. Co. et al., 14 N.Y. 310-318; Louisville R. R. Co. et al. v. Trammel, 93 Ala. 350-354, 9 So. 870; 17 C. J. 1326 and note 4, sec. D, p. 1328; Bagley v. St. Louis, 268 Mo. 259, 186 S.W. 966; Missouri R. R. Co. v. McLaughlin, 73 Kan. 249, 84 P. 989.

So it seems that the weight of authorities of the state courts of last resort hold that the beneficiaries are not confined to a recovery of contributions which they had a right to reasonably expect from the deceased during his lifetime, but that they are entitled to recover as benefits to them the estate which the decedent might have accumulated during his life expectancy.

Argued orally by Ellis B. Cooper, for appellant, and Jeff Collins, for appellee.

OPINION

ANDERSON, J.

Appellee, A. L. Simmons, as administrator of the estate of T. L. McDaniel deceased, brought this action in the circuit court of the second district of Jones county, against appellant, Gulf, Mobile & Northern Railroad Company, to recover damages for the alleged wrongful death of said deceased at the hands of appellant. The appellee recovered a judgment in the sum of eleven thousand five hundred dollars from which judgment appellant prosecutes this appeal.

A very brief statement of the case will be sufficient to bring out the questions upon which it turns. At the time of the death of the deceased, he was engaged in the service of appellant as "ledgerwood engineer." Appellant was engaged in interstate commerce, and deceased was likewise engaged; therefore the federal Employers' Liability Act (U. S. Comp. St., sections 8657-8665) is controlling. There was no eyewitness to the injury and death of the deceased. His body was run over by the wheels of appellant's train, on which he was employed. His body was cut to pieces. Therefore no appreciable time elapsed between his injury and death, during which he could have suffered physically and mentally. The evidence as to whether the deceased came to his death through the negligence of appellant rested entirely upon circumstantial evidence.

Appellant contends that the evidence was insufficient to go to the jury on the question of liability. We can see no good purpose in setting out the evidence bearing on this question. We think it fairly tended to show that the deceased came to his death through the negligent handling by appellant's employees of the train, from which the deceased was thrown, and which ran over him.

Appellant contends, further, that, conceding that deceased was killed through the wrongful act of appellant there could be no recovery, because the beneficiaries for whom recovery was had, namely, the deceased's two children and two grandchildren, were shown to have no pecuniary interest in the life of their father and grandfather. The deceased left surviving him a married son, W. D. McDaniel, about...