87 N.J.L. 388 | N.J. | 1915
Tlie opinion of the court was delivered by
The petitioner is a sister of Thomas Dolan,
deceased, who fell off a barge, or scow, on the Delaware and Earitan canal, in the course of his employment as a boatman, and was drowned. Mo question is raised but that the Pennsylvania Eailroad Company operates the canal as lessee (see Black v. Canal Company, 22 N. J. Eq. 130, 401; 24 Id. 455), and it satisfactorily appears that the deceased was employed and paid bv tlie railroad company. It; is not denied that deceased came to bis death from an accident arising out of and iu tlie course of his employment. It is denied that petitioner is an-actual dependent, and it is practically conceded that no one else could claim to be such. The evidence shows that deceased made his home at her house, so far as lie had a home, and that bis brother did likewise. Doth worked on their boats and were away from Monday until Saturday, but always spent their spare time, from Saturday until Monday, at her house, and eacli paid her $5 a week. The court found, and its finding is justified, that these payments were materially greater than the mere value of the board and lodging for thirty-six hours and the care of their extra clothing, &e., for the rest of the week; so that they were really contributing to her support. We understand the phrases “actual dependents’1’
It is further argued that the canal is an interstate waterway; ergo, the Federal Employers’ Liability act applies; ergo, our Workmen’s Compensation act does not apply.’ Conceding the interstate character of the canal, we think these deductions are erroneous. The federal act does not apply, because by its terms it affects onty common carriers by railway. Act April 22d, 1908, ch. 149; 35 Stat., p. 65; U. S. Comp. Stat. 1913, pp. 8657 et seq. It is true that the employer is a railroad company, but as such employer of deceased it was operating a canal and not a railroad. Again, the federal and state acts are not in pari materia. The one is an act .creating a liability to the employe as in tort, based upon common law negligence, or the failure to comply with some statutory provision for the safety of tire employe; the other, so far as its section 2 is concerned, is a compensation act purely contractual in character, and requiring compensation for injury or death to be made as an incident of the mere relation and quite irrespective of any question of negligence on the part of the employer. It was manifestly intended, among other things, to give relief in just such cases as the present one, where no claim of negligence on the part of the employer could reasonably be made. As to this class of cases, at least, we deem the federal act not to be exclusive. The authorities cited by prosecutor will be found to involve in each case a conflict between the federal act and a state act imposing a liability as in tort for breach of a statutory or common law duty.
Lastly, it is urged that the judgment should be reversed because the trial court erred in awarding funeral expenses, and that these are not the subject of award unless there are no dependents. We have so held, notwithstanding the amend
The result is, that so far as the award directs payment of funeral expenses, it will be reversed; otherwise it will he affirmed. PTo costs will be awarded.
