Kenney v. Seabd. Air Line R. Co

• Decision Date: 30 September 1914
• Docket Number: (No. 105.)
• Citation: 82 S.E. 968,167 N.C. 14
• Court: North Carolina Supreme Court
• Parties: KENNEY. v. SEABOARD AIR LINE R. CO.

82 S.E. 968

(167 N.C. 14)

KENNEY.

v.SEABOARD AIR LINE R. CO.

(No. 105.)

Supreme Court of North Carolina.

Sept. 30, 1914.

Appeal from Superior Court, Bertie County; Connor, Judge.

Action by S. W. Kenney against the Seaboard Air Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 165 N. C. 99, 80 S. E. 1078; 82 S. E. 849.

Murray Allen, of Raleigh, for appellant.

Winston & Matthews, of Windsor, for appellee.

CLARK, C. J. This is an action for wrongful death under the federal Employers' Liability Act by the administrator of an illegitimate child.

The federal statute provides that such action shall be maintained "for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and if none, then of the next kin dependent upon such employe." The mother of the intestate is dead, but left two sons and a daughter of tender age and dependent, born in wedlock.

The sole contention of the defendant, requiring our consideration, is that the expression "next of kin, " as used in section 1 of this act, is to be construed by the common law, disregarding the state law defining those words. Revisal, § 137, provides:

"Illegitimate children, born of the same mother, shall be considered legitimate as between themselves and their representatives, and their personal estate shall be distributed in the same manner as if they had been born in lawful wedlock. And in the case of the death of any such child or his issue, without leaving issue, his estate shall be distributed among his mother and all such persons as would be his next of kin if all such children had been born in lawful wedlock."

To same purport, Revisal, § 1556, rule 10; Powers v. Kite, 83 N. C. 156; McBryde v. Patterson, 78 N. C. 412.

The federal statute provides that this action may be brought in our courts. It is very clear that in North Carolina the two half brothers and the sister of the intestate are his next of kin. It seems to us immaterial whether it were formerly otherwise in this state either by statute, or the common law before any statute. The question is: Who was the "next of kin" at the time of such death in the state where the wrongful death occurred?

In Hutchinson Investment Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct 504, 38 L. Ed. 356, the court held:

"In states whose laws permit illegitimate children, recognized by the father in his lifetime, to inherit from him, such children are 'heirs, within the meaning of U. S. Rev. Stat. § 2269, which provides that, when a party entitled to claim the benefits of the pre-emption laws of the United States dies before consummating his claim, his executor or administrator may do so, and the entry in such case shall be made in favor of his heirs, and the patent, when issued, inures to them as if their names had been specially mentioned."

In that case it was contended that the word "heirs" was used in the common-law sense. The court said:

"Undoubtedly the word 'heirs' was used as meaning, as at common law, those capable of inheriting, but it does not follow that the question as to who possessed that capability was thereby designed to be determined otherwise than by the law of the state which was both the situs of the land and the domicile of the owner."

It has been often held that there is no common law for the federal courts. The contention that the next of kin must be the same in all the states is not in accordance with the intent of the act. Indeed, there could be no uniformity, if that was desirable, for there is no common law in Louisiana, and the common law is much modified in some of the states which we acquired from Mexico and France, and on many subjects the rule of the common law has been held differently in the different states. This case cites U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192, and is cited in Moen v. Moen, 16 S. D. 214, 92 N. W. 13.

In Cutting v. Cutting (C. C.) 6 Fed. 268, where the act of Congress prescribed that the heirs of a married settler should receive a patent where he had not taken it out, it was held:

"Who are the heirs of Charles Cutting is a matter to be determined solely by the local law [the law of Oregon, as is also the question who is his wife]. Both these are left to the local law * * * of Oregon, quoting from Lamb v. Starr, Deady. 358 [Fed. Cas. No. 8, 021]: 'Who would be entitled to claim as heir (or wife) of the deceased would in all cases depend upon the law of Oregon at the time of the death.' "

The same ruling was made as to "next of kin" being governed by the law of the domicile in McCool v. Smith, 66 U. S. (1 Black) 459, 17 L. Ed. 218.

The object of the act of Congress was to permit a recovery for wrongful death or injuries on interstate railroads, and that the recovery should go to the next of kin in the cases specified; the next of kin being determined by the law of the state in which the action is brought, for the status of the citizen, and the statute regulating descent and distribution is purely a state matter with which Congress has no concern. By the reasoning in the case above cited the words "next of kin' are taken like the word "heirs, " as meaning those to whom the property would go but who are the heirs and who are the next of kin is a matter purely of state regulation

Tin decision in Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. —, decided February, 1914, holds that the right of action given to the employe survives to his personal representative for the benefit of his parents only when there is no widow, and that the act of Congress prescribing what class are the beneficiaries, and the order in which they take, controls, though the state statute fixes a different order of succession. But there is nothing in this decision which militates against the holding in Hutchinson v. Caldwell, supra, that who are the "heirs" or the "next of kin" is regulated by state statute.

The evidence as to the tender age of the children and being without estate was sufficient evidence to be submitted to the jury on the question of their being dependent. And the fact has been found by the jury, who evidently gave due weight to the evidence of the earning capacity of intestate as may be inferred from the smallness of the verdict. The exceptions to evidence need not be discussed.

No error.

WALKER, J. (concurring). It seems to me that this case is governed by McCool v. Smith, 1 Black (66 U. S.) 459, 17 L. Ed. 218, in which the question arose as to the law by which is to be determined who are the "next of kin" of a person, as those words were used in a federal statute. The court there held that the law of the domicile controlled, and not the common law, and in Hutchinson v. Investment Co., 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356, relied on by plaintiff, it is said that in the McCool Case the court decided that the common law governed simply because the state of Illinois, where the parties were domiciled, had adopted the common law by statute, and therefore the term "next of kin" was construed by the local law, or law of the domicile, as that was the rule of the common law as to the law applicable in such cases, and Illinois had then only the common law in force. She afterwards enacted a statute of distributions. In the Hutchinson Case the same rule was applied, as to the meaning of the word "heirs, " and the question was decided by the lex loci rei sitæ—the law of the state where the land was situated. In the cases cited by defendant, and in the dissenting opinion, the court was referring to the common law, as applicable, when deciding upon the legal rights of the parties, such, for instance, as the question of negligence, where there is no federal statute defining those rights, or, rather, the principles by which they are to be determined. The court, therefore, held in the McCool Case that the "next of kin, " as referred to in the federal statute, are those who answer to that description under the state law where the parties are domiciled, and not by the common law, unless that be the law of the particular state.

BROWN, J. (dissenting). 1. It is admitted that this action is brought under the federal Employers' Liability Act by the administrator of Beb Isaac Capehart, deceased, for the benefit of his next of kin. I admit that, under the statute in this state, it is not necessary to allege or prove who are the next of kin in order to recover for the negligent killing of a person. But the language of the federal statute is different, and the action is brought by the personal representative of the decedent, "for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe'sparents; and, if none, then of the next of kin dependent upon such employe."

The right to recover damages for wrongful death is purely statutory and did not exist at common law, and it follows that the provisions of the statute, under which the particular action is brought, must control it.

Under the federal act, it seems to be settled by the current of recent authority that the existence of beneficiaries, such as are named in the statute, must be pleaded and proved. Where a statute gives a right of action for death by wrongful act, if no such persons or class of persons exist as are described in the statute as the beneficiary of the recovery, the action cannot be maintained. 13 Cyc. 334.

The liability of the defendant is made contingent upon the existence of one or more beneficiaries, or the fund recovered goes to the beneficiaries, not by virtue of the law of succession, but because it is given them by the statute. Therefore, if there is no beneficiary, which meets the description of the statute, there is no right of action. Melzner v. Railway, 46 Mont. 277, 127 Pac. 1002.

In Illinois Central Railroad Co. v. Doher-ty, 153 Ky. 363, 155 S. W. 1121, 47 L. R. A. (N. S.) 31, the Court of Appeals of Kentucky distinguishes the Kentucky statute, which is very...