Poff v. Pennsylvania R. Co., Civil Action No. 3556.
| Decision Date | 29 November 1944 |
| Docket Number | Civil Action No. 3556. |
| Parties | POFF v. PENNSYLVANIA R. CO. |
| Court | U.S. District Court — Eastern District of New York |
William J. Carey, of New York City (Morris A. Wainger, of New York City, of counsel), for plaintiff.
Burlingham, Veeder, Clark & Hupper, of New York City, for defendant.
The matter for decision is a motion made by the defendant to set aside the verdict rendered by the jury for the plaintiff in the sum of $8,500 on the ground that Helen C. Poff is not authorized to maintain an action for her own benefit in circumstances which show that there are nearer surviving relatives of the deceased.
The action is under the Federal Employers' Liability Act, Title 45 U.S.C.A. §§ 51-60. The decedent died as a result of injuries which he sustained in defendant's employ as a railroad engineer. At the trial, defendants admitted liability for the collision and derailment which caused the death of the decedent. The decedent was unmarried. The only relatives surviving him, other than the plaintiff, were two sisters and a nephew, the latter a son of a deceased brother. Neither the sisters nor the nephew was dependent upon the decedent. Evidence at the trial disclosed that the plaintiff was a first cousin of the decedent and was dependent upon him for support; that he was supporting her at the time of his death and had supported her for about five and a half years immediately prior to his death. The plaintiff, a widow, took care of the decedent's household, which at the time of his death consisted only of the decedent and herself. He gave her $40 to $50 a month for her own use, for clothing, medical expenses and other incidentals, and paid all household bills for food for both of them in the sum of about $120 a month. He also paid the taxes, repairs of the house which he owned, and other incidentals.
The relevant portion of Title 45 U.S.C.A. § 51 provides that when an injury is sustained by a railroad employee through the negligence of the employer while engaged in interstate commerce, resulting in his death, the carrier shall be liable "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 jury, under the charge of the court, by its verdict, must have concluded that Helen Poff was the next of kin dependent upon the deceased.
It is the position of the defendant that the plaintiff was not such next of kin as is contemplated by the statute.
As a matter of first impression and original interpretation of the statute in question, so far as it relates to this matter, a reasonable interpretation would seem to warrant the conclusion that the statute in terms intended as beneficiaries persons other than the widow, husband, children and parents if none there were, so as to create a beneficial interest in such of the next of kin as survive, providing such surviving next of kin are dependent upon the employee. It cannot be gainsaid that a cousin falls within the class "kin"—a blood relative. Certainly it may be conceded that a brother, sister, nephew and niece would be closer of kin than a cousin, but if such surviving next of kin were not dependent upon the decedent, then they could not fall, under the...
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Poff v. Pennsylvania Co
...his cousin, was a member of his household and wholly dependent on him for support. The District Court rendered judgment for petitioner. 57 F.Supp. 625. The Circuit Court of Appeals reversed, holding that petitioner was not entitled to recover since there were nearer relatives, though not de......