* Corpus Juris-Cyc. References: Commerce, 12CJ, p. 17, n. 93. Death, 17CJ, p. 1181, n. 3; p. 1208, n. 81. Necessity of existence of and dependence of beneficiaries to sustain action for death under federal Employers' Liability Act, see 47 L.R.A. (N.S.) 65; L.R.A. 1915C, 72; 18 R.C.L. 838; 3 R.C.L. Supp. 857; 4 R.C.L. Supp. 1213; 6 R.C.L. Supp. 1090. Appellee, A.L. Simmons, as administrator of the estate of T.L. McDaniel deceased, brought this action in the circuit court of the second district of Jones county, against appellant, Gulf, Mobile Northern Railroad Company, to recover damages for the alleged wrongful death of said deceased at the hands of appellant. The appellee recovered a judgment in the sum of eleven thousand five hundred dollars from which judgment appellant prosecutes this appeal.
A very brief statement of the case will be sufficient to bring out the questions upon which it turns. At the time of the death of the deceased, he was engaged in the service of appellant as "ledgerwood engineer." Appellant was engaged in interstate commerce, and deceased was likewise engaged; therefore the federal Employers' Liability Act (U.S. Comp. St., sections 8657-8665) is controlling. There was no eyewitness to the injury and death of the deceased. His body was run over by the wheels of appellant's train, on which he was employed. His body was cut to pieces. Therefore no appreciable time elapsed between his injury and death, during which he could have suffered physically and mentally. The evidence as to whether the deceased came to his death through the negligence of appellant rested entirely upon circumstantial evidence.
Appellant contends that the evidence was insufficient to go to the jury on the question of liability. We can see no good purpose in setting out the evidence bearing on this question. We think it fairly tended to show that the deceased came to his death through the negligent handling by appellant's employees of the train, from which the deceased was thrown, and which ran over him. *Page 356
Appellant contends, further, that, conceding that deceased was killed through the wrongful act of appellant, there could be no recovery, because the beneficiaries for whom recovery was had, namely, the deceased's two children and two grandchildren, were shown to have no pecuniary interest in the life of their father and grandfather. The deceased left surviving him a married son, W.D. Mc Daniel, about thirty-four years of age, and a married daughter, Mrs. Gus Knobel, about twenty-two years of age, living with her husband in another state, and two unmarried infant grandchildren, a girl and a boy. The evidence shows, without conflict, that the deceased had made no contributions to the maintenance, support, and care of his grandchildren, nor to his two children since they were minors. In fact, the evidence shows, without conflict, that neither deceased's children nor his grandchildren had any reasonable expectation of receiving any pecuniary benefits whatever from him in the future.
They were in no wise dependent on him for support. The evidence was very indefinite as to the amount of pecuniary aid the deceased extended to his two children before they reached their maturity; and, as stated, there was no evidence to show any pecuniary benefits were received by them from their father after reaching their majority.
Undoubtedly, under the facts of this case at common law, there could be no recovery by any one for the death of the deceased. If a recovery may be had on behalf of any person, it must be by virtue of the federal Employers' Liability Act (U.S. Compiled Statutes 1918, sections 8657 to 8665, inclusive). Whether a recovery may be had under the facts of this case depends on the proper construction of the first and last sections of that act, sections 8657 and 8665, as they appear in the United States Compiled Statutes of 1918. Those sections are in this language:
"Every common carrier by railroad while engaging in commerce between any of the several states or territories, *Page 357 or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."
"Any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury."
Appellee contends that the measure of damages is not confined to the anticipated pecuniary benefits which the persons on whose behalf suit was brought had a right to expect from the deceased during a continuation of his life; that in the absence of evidence of such pecuniary benefits the children and grandchildren of the deceased were entitled to recover the net estate he might have left at his death based upon his earning capacity and life expectancy; in other words, that they had the right to recover the net estate which deceased might have built up during his life expectancy, and which they would have inherited at his death had they been living at that time. As we understand the decisions of the supreme court of the United States bearing on this question, that court has *Page 358 settled the question contrary to the appellee's contention inMichigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417; American Railroad v. Didricksen,227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456; Gulf Coast St. F.R.R.Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785.
In the Vreeland case, the supreme court said that:
"The damages are such as flow from the deprivation of thepecuniary benefits which the beneficiaries might have reasonablyreceived if the deceased had not died from his injuries." (Italics ours.)
The McGinnis case was an action for the benefit of a widow and four children; one of the children was a married daughter, living with her husband. The jury awarded one-half of the recovery to the widow and the other half to be divided equally among the four children, including the married daughter, who was receiving no pecuniary benefits from her father. Contention was made that the married daughter was entitled to recover, as well as the others. The court held that, although the judgment was for a gross amount, the interest of each beneficiary was measured by his or her loss; that this apportionment was for the jury to return in their verdict. The court said, among other things:
"This will, of course, exclude any recovery in behalf of suchas show no pecuniary loss."
The married daughter was denied any right in the recovery. If appellee's position be sound, the supreme court could not have so decided, because the married daughter, although not shown to have any reasonable ground to expect pecuniary benefits from her father during his lifetime, nevertheless would have been entitled to recover her share in the net estate he might have left at his death based on his earning capacity and life expectancy. InThomas v. C. N.W. Railway Company (D.C.), 202 F. 766, the court interpreted the Vreeland and Didricksen cases exactly as we have. The court said: *Page 359
"The damage to the estate, and the measure of recovery therefor, are essentially different from the pecuniary loss or injury to the dependent relatives because of the death of the employee. . . ."
The supreme court of Georgia, in Southern Railroad Co. v.Hill, 139 Ga. 549, 77 S.E. 803, construed the statute in the same way. The supreme court of the United States, it seems, necessarily decided this question in C., C. O. RailroadCompany v. Shewalter, a decision by the supreme court of Tennessee (128 Tenn. 363, 161 S.W. 1136, L.R.A. 1916C, 964, Ann. Cas. 1915C, 605), in which the supreme court of the United States affirmed the judgment of the Tennessee court in a per curiam opinion (239 U.S. 630, 36 S.Ct. 166, 60 L.Ed. 476). The supreme court of Tennessee held in that case that there could be no recovery by the father of an adult son, instantly killed while employed by a railroad in interstate commerce, and where it was not shown that the father had a reasonable expectation of pecuniary assistance or support from his son. In affirming the judgment, the supreme court of the United States did so upon the authority of the Vreeland, Didricksen, and McGinnis cases, referred to above, and other decisions of that court. Appellee refers to cases sustaining the contrary view, decided before the Vreeland, Didricksen, and McGinnis cases, but none since.
It becomes unnecessary to decide whether grandchildren, under any state of facts whatever, may recover when children are left surviving. It will be noted that in the first section of the act the recovery is "for the benefit of the surviving widow or husband and children; . . . and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee." And in the last section it is provided that the cause of action shall survive to the personal representative of the deceased, "for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if *Page 360 none, then of the next of kin dependent upon such employee." In the proper case, it might be a serious question whether, if the preferred beneficiaries under the statute failed to show a reasonable expectation of pecuniary benefits from the deceased during his lifetime, the beneficiaries next named in the statute would be entitled to recover, provided they showed a reasonable expectation of such benefits. It is not necessary to decide the question in this case, because neither the children, whom the statute prefers, along with the parents of the deceased, over the grandchildren, nor the latter, have made a case of reasonable ground to expect pecuniary benefits from the deceased during his lifetime.
It seems novel in these times that there may be a wrongful death, and no right of recovery in any one, but it seems so under the federal Employers' Liability Act in a case of the character of this one. It would be otherwise, of course, under the laws of this state; but the supreme court of the United States has decided time and again that where Congress had occupied by legislation a particular field, which it was permitted to do under the Constitution of the United States, all state laws on the subject were displaced.
Reversed, and judgment here for the appellant.
Reversed.