232 P. 683 | Colo. | 1925
JOHN WILSON, a brakeman employee of the receivers of The Denver Salt Lake Railroad Company, was killed by their negligence in train operation while both were engaged in interstate commerce. This action for damages is under the Federal Employers' Liability Act and was brought, as the act provides, by the administrator of Wilson's estate and for the benefit of his minor son, his sole heir at law. The judgment against the receivers for $5,500 is here for review. The assignment of error in substance is that there is no averment in the complaint, and there is no evidence in the record, of any pecuniary loss or damage to the minor son. The only averments concerning damage are that the beneficiary is the minor child of deceased and that he has been damaged in the sum of $50,000. The only evidence, which is by stipulation, is that he is the minor son and sole heir at law of Wilson.
If this were an action for damages under our 1877 damage act, and if the averment in this complaint, under the ruling in Orman v. Mannix,
In the McGinnis Case, the court, speaking by Mr. Justice Lurton, said that the assignment of error to the judgment of the Texas Court of Civil Appeals under review, was that the court "misconstrued the character of the liability imposed by the act under which the suit was brought by a ruling that there might be a judgment for the benefit of one of the surviving children, although there was neither allegation nor evidence that that surviving child was either dependent upon or had any reasonable ground for expecting any pecuniary benefit from a continuance of the decedent's life." The Texas Court of Civil Appeals, which upheld the ruling of the trial court, observed that "The federal statute expressly authorizes the suit to be brought by the personal representative for the benefit of the surviving wife and children of the deceased, irrespective of whether they were dependent upon him, or had the right to expect any pecuniary assistance from him." Justice Lurton thus disposes of the assignment: "This construction of the character of the statutory liability imposed by the act of Congress was erroneous." This decision and the observation of the court at page 266 of the Zachary opinion may be ambiguous. They may, we do not say they do, have the meaning ascribed to them by the employer here that dependency and reasonable expectation of assistance must both be shown as a condition to a recovery by any beneficiary. Tobin v. Bruce,
If, moreover, a beneficiary above the rank "next of kin", though not dependent, may, as the beneficiary contends, sue if he has a reasonable expectation of receiving benefits, still it is necessary, in an action under this act, and under the facts of this case, to aver and prove something more than the mere relationship of parent and child. There must also be, at least, averment and proof of a reasonable expectation by the beneficiary of receiving benefits from the injured employee had he survived the injury. The decisions of the Supreme Court of the United States above decided are emphatic upon this proposition. See also, Garrett v. L. N. R. R. Co.,
The right, or cause, of action is based upon a federal statute. We are bound by, and must follow, the decisions of the Supreme Court of the United States in its construction of a federal statute, even if we differed from that court in the construction given. As we read the decisions of that tribunal, to entitle a minor child to recover thereunder, it is necessary that there be both averment and *404 proof, if not of dependency, at least of a reasonable expectation that, had the deceased survived the injury, he would have contributed to the maintenance of the beneficiary. Neither by averment nor proof in this case has the plaintiff brought himself within the provisions of the statute.
The judgment of the district court is, therefore, reversed.
MR. JUSTICE ALLEN and MR. JUSTICE SHEAFOR concur.