In re Stone

• Decision Date: 28 March 1917
• Docket Number: 249.
• Citation: 91 S.E. 852,173 N.C. 208
• Parties: IN RE STONE.
• Court: North Carolina Supreme Court

91 S.E. 852

173 N.C. 208

IN RE STONE.

No. 249.

Supreme Court of North Carolina

March 28, 1917

Walker and Allen, JJ., dissenting.

Appeal from Superior Court, Wake County; Bond, Judge.

In the matter of the accounting of Carey Stone, as guardian of Thomas S. Stone, an infant on the application of Emmett P Stone, uncle of Thomas S. Stone.From the decree rendered the guardian appeals.Affirmed.

This proceeding was begun before the clerk whose decision was affirmed in the superior court upon appeal.It is admitted that the deceased was killed while employed by the Seaboard Air Line Railroad Company in interstate commerce and left a widow 31 years old and one son 11 years old, and that the net amount received by her as administratrix of her husband after payment of attorney's fees was $9,750, and that they are both dependent and are the sole beneficiaries.It is agreed that property owned by either, if any, shall not be considered in passing on this question; that both are in good health; that the boy lives with his mother; and that their relations to each other are such as usually prevail between mother and minor son.It is admitted that the money received was paid by compromise to the administrator without action, and that the decedent had taken care of his wife and child.Upon these factsthe counsel for the widow moved the court to submit to the jury issues as to the relative rights of herself and her child in the fund or to refer it to a referee to ascertain the amount due each.The court refused to do this, and affirmed the order of the clerk to divide the fund in accordance with our statute of distributions, allotting to the widow one-third and the child two-thirds, and directed that the widow should give an administration bond in the sum of $13,000, being double the amount of the $6,500 allotted to the child.From such judgment she excepted and appealed.

Douglass & Douglass, of Raleigh, for appellant.

Moses N. Amis and Winston & Biggs, all of Raleigh, for infant.

CLARK C.J.

The net sum received by the administratrix under the compromise and settlement with the railroad company stands on the same basis as if it had been recovered by action.The sole question presented, therefore, is whether the compensation for wrongful death of an employé while engaged in interstate commerce, already ascertained and determined, is, on the facts of this case, to be apportioned according to our statute of distributions.The federal Employers' Liability Act provides that the action shall be brought by the personal representative of the deceased employé--

"for the benefit (1) of the surviving widow, or husband and children of such employé; and, if none, then (2) of such employé's parents; and if none, then (3) of the next of kin dependent upon said employé."

The federal statute therefore creates three classes, which are separate and distinct from the other.If there is any member of the first class, the other two are excluded.If there is none of the first class, but one or more of the second, then the third class will be excluded.If any member of the last class does not come under the provision "dependent upon such employé"(Allen, J., Dooley v. Railroad,163 N.C. 454, 79 S.E. 970, L. R. A. 1916E, 185), then such person is excluded from that class, and if such exclusion should apply to the whole of that class, then there can be no recovery.If the recovery by "next of kin" should be enlarged by the wrongful inclusion of one not "dependent," that question must be raised at the trial by proper exceptions.Railroad v. Zachary,232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159.

The federal Employers' Liability Act declares who shall take in case of wrongful death, but leaves it as a matter of law how much and what proportion each shall take in its class except when the state act requires that the apportionment must be made in the verdict as in Railroad v. McGinnis,228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785, under the Texas Act.The federal statute makes no provision for the apportionment of the fund, and therefore the statestatute controls.The source of the recovery is the United States statute, and that indicates only the different classes of the beneficiaries, and the manner of ascertaining the amount due.But when the amount and class are ascertained, the sum paid or recovered must be distributed in that class according to the requirement of the state law.In this case there being a widow and a child, the amount is to be divided between them according to our statute, two-thirds to the child and one-third to the widow.That matter is regulated by the statestatute of distribution.Railroad v. White,238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann. Cas. 1916B, 252.

It is true, as contended by the appellant's brief, that the classification of beneficiaries under the federal act must govern when it differs from the state act, but within the class entitled the federal act applies only so far as to restrict recovery in the third class to those who suffer some pecuniary loss, while under the statestatute this is not so.When as here, the parties are in the same class, there being no conflict between the state and federal statute, the latter is silent, and the statestatute controls the distribution.

In Broadnax v. Broadnax,160 N.C. 432; 76 S.E. 216, 42 L. R. A. (N. S.) 725, the court held that the amount of recovery for wrongful death must, under Revisal, §§ 59 60, "be disposed of as provided for the distribution of personal property in case of intestacy and that it cannot be applied either in payment of debts nor can any part thereof be allotted to the widow on her year's support," and to the same purport Neill v. Wilson,146 N.C. 242, 59 S.E. 674, but this does not exempt the share of the distributee from being liable to his creditors.

In Hartness v. Pharr,133 N.C. 566, 45 S.E. 901, 98 Am St. Rep. 725, it was held that where a person domiciled in another state is killed in this state and his administrator sues here the funds recovered must be distributed according to our statute although prior administration had been taken out in the state of his...