68 So. 336 | Ala. | 1915
delivered the opinion of the court, this case having been submitted under new rule 46, and considered and decided thereunder.
This suit Avas brought under the Federal Employers'' Liability Act, and there was a judgment for the benefit, of Mary Alice Yessell, a sister of the deceased employee, who was alleged to have been killed through the negligence of the defendant’s servants in the operating of one of its trains, and it was admitted that the defendant was at the time engaged in interstate commerce.
The case was tried upon the tenth count alone, which proceeded under the original act of 1908, and not under section 9, amended by the act of 1910 (Act April 5,1910, c. 143, § 2, 36 Stat. 291 [U. S. Comp St. 1913, § 8665]) providing for a survival of the right of action by the personal representative, for the benefit of the classes dependent upon the deceased.
The federal act gives -a right of action for the unlawful death of an employee- to his personal representative: .(1) For the benefit of the surviving husband or wife and children of such employee; (2) if no surviving wife or husband or children, then to the parents of such employee; (3) if there are none belonging to the first or the second class, then for the benefit of the next of kin “dependent” upon such employee.
As an original proposition, we might, if the question Avas involved, be inclined to hold that the right of action in favor of those of the first and second classes did not hinge, upon the fact that they were dependent upon the employee at the time of his. death, but we are now precluded from -doing so, even if the question was involved upon this appeal, as the United States Supreme Court, in the case of Railroad Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, L. Ed. 785, held that for persons belonging to either class to get the benefit of the
“In Daniels v. Savannah, etc., R. Co., 86 Ga. 236, 12 S. E. 365, the court construes the word ‘dependent’ as meaning substantially, and not wholly, dependent, and says: ‘The contribution to the father or mother by the child heed not be wholly sufficient, but only such as is in part sufficient for such support, and that the word “de
“In Duval v. Hunt, supra, it is said.: ‘We think that, when the suit is brought by a person who bases his rig-ht to recover upon the fact that he is dependent upon the deceased for support, then he must show, regardless of any ties of relationship or strict legal right to such support, that he or she was either from the disability of age, or non-age, physical or mental incapacity, coupled with the lack of property means, dependent in fact upon the deceased for such dependence, an actual inability to support themselves, and an actual dependence upon some one else for support, coupled with a reasonable expectation of support or with some reasonable claim to support from deceased.’
“The evidence here does not bring respondents within the statute. They were in no sense dependent upon the deceased for support. The father was able to follow a daily vocation, and, if his earnings only resulted in an average income of $40 per month, that was the result of his inability to sell more goods, and his inability to solicit the sale. His necessity must not be judged from his -unsuccessful effort to make a larger income, but from his physical ability to make the effort. Neither does an occasional contribution from a son [556] to a parent establish a condition of dependency. There must be a substantial need on one side and a substantial * * * recognition of that need on the other side, to make out a dependency within the meaning of this :statute.”
See, also, the cases of Hodnett v. Boston R. R. Co., 156 Mass. 86, 30 N. E. 224; McCarty v. Order of Protection, 153 Mass. 314, 26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637; Daly v. S. & I. Company, 155 Mass. 1, 26 N. E. 507.
We do not think the evidence in this case show’s such a substantial or material dependence of Mrs. Vessel upon the deceased as to bring the case within the influence of the federal statute. It, at most, shows that he made monthly contributions for about two years prior to his death for the benefit of the said Mrs. Vessell and a minor nephew. It also appears that the deceased was getting, in return,, his board and lodging, and wdiich was approximately-worth the amount contributed to Mrs. Vessell. Mrs. Vessell, instead of being in a necessitous condition, was,, as far as the proof shows, in as good financial condition as when she was supporting the deceased. Her husband' had employment, they had a home, and he seems to have-been able to take care of the family, including the deceased, up to two years prior to his death, and there is; no proof that there was such a shrinkage or diminution in his earnings, or ability to earn, as to render his wife dependent upon the deceased or any one else. Mrs. Vessell had been like a mother to the deceased, her younger-brother; and it was not only natural, but he was under-a high moral duty, to aid and assist her financially and otherwise, and it may be that she lost á prospective help- and support,-ifi case she came to need and want, as time- and age made their impress upon herself and husband;.
It is sufficient to say that the trial court erred in refusing to give the defendant’s requested charge 6, and it is therefore unnecessary for us to discuss the other assignments of error.
The judgment of the circuit court is reversed, and the cause is remanded.