Lytle v. Southern Ry. Carolina Div.

• Decision Date: 26 September 1929
• Docket Number: (No. 12739.)
• Parties: LYTLE. v. SOUTHERN RY. CAROLINA DIVISION.
• Court: South Carolina Supreme Court

149 S.E. 692

LYTLE.

v.SOUTHERN RY. CAROLINA DIVISION.

(No. 12739.)

Supreme Court of South Carolina.

Sept 26, 1929.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of York County; M. M. Mann, Judge.

Action by Will Lytle, as administrator of the estate of Alf Lytle, deceased, against the Southern Railway-Carolina Division. Judgment for plaintiff, and defendant appeals. Affirmed.

The following Is the order of Judge Mann, overruling the demurrer:

"This case comes before me on demurrer at the regular term of the court of common pleas for York county, S. C.

"This is an action brought by the personal representative of one Alf Lytle, deceased, for damage for the death of said deceased, resulting, as alleged, from the negligence of the defendant while, engaged in interstate commerce, and while said deceased was employed by the defendant in such commerce. The complaint alleges that the wrongful death occurred in North Carolina while the deceased was employed and engaged in operating a train of the defendant in interstate commerce; that the deceased was a resident of South Sarolina; that the suit is brought for the benefit of the deceased's mother, the only surviving parent; that the deceased left no child; and that the woman to whom he was at one time married has deserted him without cause and eloped with an adulterer.

"The defendant demurred to the complaint on the ground that it fails to show a cause of action under the Federal Employers' Liability Act (45 USCA §§ 51-59) for the benefit of the mother; there being, as alleged in the complaint, a living widow.

"The question before this court on this demurrer is obvious: Whether or not an action can be maintained by the legal representative for the wrongful death of a deceased in North Carolina under the Federal Employers' Liability Act for the benefit of the mother, where there is no father or children and where the woman married to deceased has deserted him without cause and eloped with an adulterer.

"This suit was rightly brought under the federal law, because in cases of interstate commerce the act of Congress supersedes all state statutes in so far as it deals with the subjects to which it relates. However, on all questions not covered or legislated upon by the federal law, the law of the state controls. Seaboard A. L, Rwy. Co. v. Kenney (N. C. 1916) 240 U. S. 489, 36 S. Ct 458, 459, 60 L. Ed. 762.

"From this case the following is quoted: 'There can be now no question that the Act of Congress in so far as it deals with the subjects to which it relates is paramount and exclusive. It is therefore not disputable that recovery under the Act can be had alone in the mode and by and for the persons or class of persons in whose favor the law creates and bestows a right of action. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, 1 N. C. C. A. 875.'

"The federal statute contains, however, no definition by which it is determined who are to constitute the classes to whom the benefit of a right or recovery is granted. The federal act of April 22, 1908, c. 149, § 1, 35 Stat. 65 (45 USCA § 51), states that an employer shall be liable, 'in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee.' The question of construing the statute to determine who are to constitute the classes named therein, since the statute plainly contains no definition, therefore, is left to the state law. The Kenney Case was on the question of who were the next of kin for the purpose of recovery under the act of Congress and decided that question by the state law.

" ' "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?" Proceeding to examine and decide this question, it was held that next of kin for the purpose of the recovery under the Act of Congress were the next of kin as established by the law of the State where the. right to recover obtained.'

" 'Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various states to whose authority that subject is normally committed, it would seem to be clear that the absence of a definition in the Act of Congress plainly indicates the purpose of Congress to leave the determination of that question to the State law.'

"The laws of South Carolina and North Carolina seem to be practically in accord in their policy to shut out an unfaithful adulteress from any of the benefits of her husband's estate. Both States take away the rights consequent upon marriage and refuse her the right to enforce her conjugal rights. The case of Moore v. Robinson et al., 139 S. C. 393, 137 S. E. 697, holds that a wife voluntarily leaving her husband and marrying another relinquishes her rights to dower and to a distributive share of her husband's estate. The order of the Circuit Judge in that case was affirmed and adopted as the decree of the Supreme Court. The following language is used in that decree: 'I feel compelled under the law and the evidence to hold that the plaintiff willingly separated and left her husband; and that by reason of her subsequent conduct, living with and intermarrying with another man during the lifetime of her husband, she forfeited her right of dower and consequently her distributive share of his estate.'

"The following statute embodies the North Carolina law on the question: Consolidated Statutes of North Carolina, § 2523. 'Wife's Elopement or Divorce a Mensa at Husband's Suit a Bar. If a married woman elopes with an adulterer, or willfully and without just cause abandons her husband and refuses to live with him, and is not living with her husband at his death, or if a divorce from bed and board is granted on the application of the husband, she shall thereby lose all right to dower in the lands and tenements of her husband, and also all right to a year's provision, and to a distributive share from the personal property of her husband, and all right to administration on his estate, and also all right and estate in the property of her husband, settled upon her upon the sole consideration of the marriage, before or after marriage; and such elopement may be pleaded in bar of any action, or proceeding, for the recovery of such rights and estates; and in case of such elopement, abandonment, or divorce, the husband may sell and convey his real estate as if he were unmarried, and the wife shall thereafter be barred of all claim and right of dower therein.'

"The policy of both states is to put the unfaithful wife in the same position as the divorced wife, to give her no rights or legal status as a widow after the deserted husband's death. It is held by implication that a divorced wife cannot benefit by the death statute in Southern Railway Co. v. Miller (C. C. A.) 267 F. 376, 381 (certiorari denied 254 U. S. 646, 41 S. Ct. 15, 65 L. Ed. 455), in which the court says: 'There had been no divorce, and nothing appears to show that she might not at any time have enforced her conjugal rights under the laws of Virginia.'

"The court in that case then decided that the wife under that circumstance was entitled to recover, implying that had she been excluded from enforcing her conjugal rights under the laws of Virginia, or had she been divorced, that she could not have recovered as beneficiary under the federal statute.

"In the case of Gilliam v. Railway, 108 S. C. 195, 93 S. E. 865, the Supreme Court of South Carolina refused to hold that a widow had forfeited her rights of support and consequently her rights to damage under the Federal Employers' Liability Act for the death of her husband because he had' abandoned her first without cause. The law Imposes upon every man the duty of supporting his wife and minor children, and in this state any able-bodied man who without just cause or excuse abandons or fails to supply theactual necessities of life to his wife, or to his minor unmarried child or children dependent upon him, is guilty of misdemeanor. However, the case before the court is distinguishable from the Gilliam Case in that the wife here has been the first to abandon her husband without just cause or excuse thereby relinquishing all of her rights to his support and by eloping with her paramour and living in adultery she has lost her rights to be considered a widow for the purpose of the recovery under the act of Congress. The Gilliam Case so implies by its language.

"An unfaithful wife, therefore, having no rights or legal estate as a widow and not being entitled to benefit for the wrongful death of her deceased husband, there is no one to enjoy the benefits of the survivor of the rights of action, as provided by statutes ahead of the mother. The mother is, it seems, the proper person for whose benefit this action should have been brought.

"In the case of New Orleans & Northeastern Railway Co. v. Cheney Harris, 247 U. S. 367, 38 S. Ct. 535, 536, 62 L. Ed. 1167, it was held that proof of a mother's pecuniary loss could not support the recovery in an action for death brought under the Federal Employers' Liability Act, where the deceased left a widow, and, although they had lived apart, no claim is made that rights and liabilities consequent upon marriage had disappeared under the local law. The court says: 'No claim is made that rights and liabilities...