Notti v. Great Northern Ry. Co.

• Decision Date: 24 May 1940
• Docket Number: 8049.
• Citation: 104 P.2d 7,110 Mont. 464
• Parties: NOTTI v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

104 P.2d 7

110 Mont. 464

NOTTI v. GREAT NORTHERN RY. CO.

No. 8049.

Supreme Court of Montana

May 24, 1940

Rehearing Denied June 3, 1940.

Appeal from Eleventh District Court, Flathead County: J. E Rockwood, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. by Pietro A. Notti as administrator of the estate of Antonio Vitellone, deceased, against the Great Northern Railway Company, a corporation, for death of intestate while employed by defendant. From a judgment for the defendant plaintiff appeals.

Reversed and remanded with directions.

M. J Doepker, of Butte, and R. D. Frederick, of Whitefish, for appellant.

Walchli & Korn, of Kalispell, and Weir, Clift & Bennett, of Helena for respondent.

ANGSTMAN Justice.

This action is based upon the Federal Employers' Liability Act, Title 45, Section 51, U.S.C.A. The action is to recover damages for the death of Antonio Vitellone, who was killed on March 1, 1933, while employed by the defendant railway company. The complaint alleges that the railway company and Vitellone were both engaged in interstate commerce at the time the latter was killed. The court sustained a general demurrer to the complaint and, upon plaintiff's failure to amend, entered judgment in favor of the defendant.

No question is raised regarding the sufficiency of the complaint to allege negligence on the part of the railway company which proximately caused the injuries and death of Vitellone. From the complaint it appears that Vitellone died within a few minutes after sustaining the injuries. The action does not seek any compensation for his pain and suffering, nor does it seek to recover on any cause of action which the decedent himself might have had. The complaint sets out that Vitellone's father and wife had died before him, but that he left two sons, each of whom was over the age of 21 years at the time of the death of Antonio Vitellone, and who were then married and had families of their own. It is alleged that "at the time of his death his said sons were each able-bodied men, engaged in the occupation of farming, and were not depending on Antonio Vitellone for support nor pecuniary assistance of any kind; that neither of said sons, at the time of his death, had any reasonable expectation of ever receiving support, pecuniary contributions, nor any pecuniary aid from said Antonio Vitellone, nor were they, by his death deprived of any pecuniary assistance, nor the reasonable expectation of any pecuniary assistance at any time in the future."

The action is brought by the administrator for the benefit of the mother of Antonio Vitellone, who was alleged to have been dependent upon the decedent for her support at the time of his death. The only question in the case is the proper interpretation of the Federal Employers' Liability Act. Section 51 thereof so far as applicable provides: "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, 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, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier," etc.

It is contended by plaintiff that, since the sons had not sustained any pecuniary loss by reason of the death of their father, the mother thereupon, under the statute, became the one entitled to the benefit of the recovery under the federal statute. The defendant contends, on the other hand, that the existence of the surviving sons made them the beneficiaries under the Act, at least for nominal damages, which precludes recovery for the benefit of the mother.

As will be noted from the statute, there are three classes named in the Act for whose benefit recovery may be had when death ensues, viz.: (1) The surviving husband or wife and children of the employee; (2) if none, then to the parents of the employee; and (3) if none, then to the next of kin dependent upon the employee.

In the interpretation of the federal statute we are, of course, bound by the interpretation placed upon it by the United States Supreme Court. In that respect the supreme court of Alabama, in Southern Railway Co. v. Vessell, 192 Ala. 440, 68 So. 336, Ann.Cas.1917D, 892, made a statement to which we subscribe when it said: "As an original proposition, we might, if the question was involved, be inclined to hold that the right of action in favor of those of the first and second classes did not hinge upon the fact that they were dependent upon the employe at the time of his death, but we are now precluded from doing so, even if the question was involved upon this appeal, as the United States supreme court, in the case of Gulf, C. & S. F. Railroad Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785, held that for persons belonging to either class to get the benefit of the statute he or she must have been *** dependent upon the deceased."

In other words, were the question presented to us without the interpretation of the United States Supreme Court, we would be inclined to agree with the contention of the defendant. However, the Supreme Court of the United States has definitely held that in order for persons in either class 1 or 2 to be entitled to the benefits of such an action, they must have sustained a pecuniary loss, or must...