Poff v. Pennsylvania RR

• Decision Date: 09 July 1945
• Docket Number: No. 351.,351.
• Citation: 150 F.2d 902
• Parties: POFF v. PENNSYLVANIA R. R.
• Court: U.S. Court of Appeals — Second Circuit

150 F.2d 902 (1945)

POFF v. PENNSYLVANIA R. R.

No. 351.

Circuit Court of Appeals, Second Circuit.

July 9, 1945.

Ray Rood Allen and Burlingham, Veeder, Clark & Hupper, all of New York City (William S. Stuhr, Jr., of New York City, of counsel), for appellant.

Morris A. Wainger and William J. Carey, both of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

PER CURIAM.

The defendant appeals from a judgment in favor of the plaintiff in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The plaintiff's testator, a railroad engineer, was killed while engaged in interstate commerce, and the defendant conceded upon the trial that the accident was due to negligence chargeable to it. The deceased left no widow, children, or parents surviving; his nearest surviving relatives were two sisters and a nephew, none of whom was in any way dependent upon him financially. The following are the other relevant facts which the jury may be assumed to have found. The deceased was domiciled in Pennsylvania, as was the plaintiff, who was his cousin: a daughter of his mother's brother. He had lived with his mother until her death in January, 1937, when the plaintiff and her husband, at his request, came to live with him. At first she and her husband paid $75 a month towards the upkeep of the house; but the husband died shortly after they came to live with him; and thereafter she paid nothing, but received from him $40 to $50 a month for her personal expenses, and a monthly allowance for the upkeep of the house. When the decedent's brother died, the amount which he paid for the food and maintenance of the house was somewhat reduced, but he continued to allow her the same amount for her personal use. She had no other income or money with which to buy food or to maintain herself.

The only point presented on this appeal is whether in the circumstances just stated, plaintiff had any standing to sue under § 51, Title 45 U.S.C.A., as "next of kin dependent upon such employee." We quote in the margin the relevant words of that section.^* The plaintiff argues, and the judge agreed, that the phrase, "next of kin dependent upon such employee," means the nearest kin who were dependent upon the deceased, and that, in ascertaining who are such, all nearer kin must be disregarded who were not dependent upon him. The defendant argues that the phrase means "next of kin" in the sense of the local statute of distributions, but that of these, those only can recover who suffer some loss by the death and only to the extent of their loss. In the absence of any widow, children or parents, the plaintiff's rule results in going down the line of inheritance as fixed by the statute of distributions, until one comes to the first "dependent," no matter how remote he may be, and how many it has been necessary to pass in order to reach him. (Presumably, if there are more than one of equal degree all will recover to the exclusion of those of remoter degree.)

The plaintiff relies chiefly upon the well-settled law that recovery by any of the persons named in the statute is limited to the pecuniary loss suffered. Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas.1914C, 176; Gulf, Colorado & Santa Fe R. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785. However, the converse by no means follows: i. e. that all who suffer pecuniary loss by the death may recover. So much is certainly not true. No doubt, there would have been an intelligible purpose in so providing, but from Lord Campbell's Act forward that has never been the law. The plaintiff cannot, and does not, invoke such a purpose, and must be, and is, content with a less comprehensive one. She says, following Notti v. Great Northern R. Co., 110 Mont. 464, 104 P.2d 7, 8, that the words should be read as follows: "for the benefit of the surviving widow or husband and children of such employee (sustaining pecuniary loss because of his death) and, if none, then of such employee's parents (if they have sustained pecuniary loss because of his death) and, if none, then of the next of kin dependent upon such employee." The statute sets up a hierarchy of three classes: (1) The widow and children; (2) parents; (3) next of kin. These are mutually exclusive: that is, when there is any recovery in a preferred classes that bars none in any deferred class; but we can found no decision but Notti v. Great Northern R. Co., supra, which holds that, when none of the members of a preferred class have suffered any loss, the...