Allen v. Napier, Maynard & Plunkett

144 Ga. 38 | Ga. | 1915

Hill, J.

(After stating the foregoing facts.) This case was submitted to Judge Mathews for decision upon the petition and answer and an agreed statement of facts. It appears from the petition and the agreed statement of facts that the defendants, a firm of lawyers, brought suit for their client, who was the father of the deceased employee (conductor) against the railway in whose service the son was negligently killed while he and the carrier were both engaged in interstate commerce. They recovered a verdict and judgment against the railway, and settled in full with the sole beneficiary of the fund collected. The question is whether the money could be paid directly by the attorneys to the father, who was the sole beneficiary and also temporary administrator of his son’s estate, and who brought the suit, or whether it should have been paid to the plaintiff, who was the permanent administrator upon the son’s estate, and who was made a party plaintiff in lieu of the temporary administrator, and in whose name the case proceeded to verdict and judgment. The court below held, in effect, that the attorneys were within their rights when they paid the money recovered to the sole beneficiary of the fund and refused on demand to pay it to the permanent administrator of the son’s estate. We think the court was right in so holding. The deceased employee and the defendant railway were both engaged in interstate commerce at the time of the homicide. Suit was brought under the Federal employer’s liability act, and under the facts that act was applicable. St. Louis &c. R. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. 651, 57 L. ed. 1129, 33 Ann. Cas. (1914C) 156). It is provided in that act that on the death of an injured employee his personal representative may bring an action for his homicide for the benefit of those surviving him, who are entitled to the proceeds of any judgment that may be recovered. Those entitled to recover under the statute are the following: First: The surviving widow or husband and children of such employee. Second: If there be no husband, widow, or children, then for the benefit of the employee’s parents. Third: If there be no beneficiaries under the first and second class, then for the benefit of the next of kin dependent upon such employee. Thornton on Federal Employer’s Liability and Safety Appliance Acts (2d ed.), §§ 98, 105; 35 Stat. c. 149. The beneficiary of the fund in the instant case comes within the second class, there being no widow or child, and the mother being dead. St. Louis &c. R. Co. v. Seale, supra. A suit brought under the Federal employer’s liability act is for the benefit of the next of kin of the deceased, as provided in the act. St. Louis &c. R. Co. v Hesterly, 228 U. S. 702 (33 Sup. Ct. 703, 57 L. ed. 1031); Eoberts on Injuries to Interstate Employees (1915), § 139. If the recovery is for the benefit of the next of kin under the statute, then it is not an asset of the decedent’s estate for distribution, or for the paying of debts, but is to be paid directly to such next of kin entitled thereto under the statute; and if this be true, the permanent administrator of the decendent’s estate is not entitled to recover from those who have paid the fund to one who is entitled to it. It is ■ true he was a nominal party to the suit, but it was for the purpose of recovering for the sole beneficiary, who has now received that to which the law says he is entitled, and not for the estate he represents. If the personal representative brings the suit under the Federal statute, it would not be on behalf of the estate he represents, but for the exclusive benefit of him who was the sole beneficiary, and who was entitled to recover for the tortious killing and for the loss which resulted to him thereby. Gulf etc. Ry. v. McGinnis, 228 U. S. 173 (33 Sup. Ct. 426, 57 L. ed. 785); Michigan Central R. R. v. Vreeland, 227 U. S. 59, 70 (33 Sup. Ct. 192, 57 L. ed. 417, 33 Ann. Cas. (1914C) 176); American R. R. of Porto Rico v. Didrickson, 227 U. S. 145 (33 Sup. Ct. 224, 57 L. ed. 456). In the case of White v. Ward, 157 Ala. 345, (47 So. 166, 18 L. R. A. (N. S.), 568), it was held that “In defense of a claim by the administrator of a child for money recovered in a suit by the administrator for the negligent killing of the child, which, under the statute, is solely for the benefit of the child’s parents, the attorney may show that he paid the money to the assignees of the parents and in satisfaction of attorney’s liens which might have been asserted against the money in his hands, notwithstanding the statute provides that every attorney receiving money for his client, and refusing to pay the same when demanded, shall be proceeded against in a summary way, and be subject to interest and penalties.” This ruling, though construing a State statute, is in point. In the case at bar the real beneficiary has been paid the money to which he was entitled; and even if the administrator as tho nominal party plaintiff was technically entitled to have the money pass through his hands and be by him paid to the beneficiary, yet the law will not require an unnecessary thing to be done; and the beneficiary having received that which was due him from the proceeds of the suit, the attorneys who collected the money and paid it over will not, at the instance of the nominal party who has no interest in the proceeds of the suit, be made to answer to him for it. That has been done which ought to have been done, and there the matter should rest. The court did not err in dismissing the rule.

Judgment affirmed.

All the Justices concur.