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Mr. S. M. Wilson.
Counsel. L&E Ry..
Lexington, Ky.
Dear Sir,
I hand you herewith Memorandum of Authorities on Federal
Employers' Liability Act, prepared by J.H.Mochord, Collection
of Undercharges on Interstate Transportation - Freight and
Passenger. prepared by H.L.Wa1ker, which may be of interest to
you.
Yours very {:'Zf, ,
District Attorney;
eno
WEB ‘

 1 .:I ,
ON
Federal Employers’ Liability Act
Prepared by]. H. McChord .
Collection of Undercharges on Inter-
state Transportation—Freight
and Passenger
Prepared by H. L. Walker
LAW DEPARTMENT, SOUTHERN RAILWAY
COMPANY, WESTERN DISTRICT
Submitted to
Alex. P. Humphrey,
General Counsel at Louisville,
by
Humphrey, Middleton 82 Humphrey
Local Counsel
V Printed for Distribution among Local Counsel

 l
.. ., l _
l
‘,‘ A Collectlon of Recent Cases under the
; Federal Employers’ Llablllty Act.
l
; OUTLINE.
. PAGE
l I. PREFACE 1
‘ II. PLEADING.
" i A. Necessary allegations in regard to inter-

l statecommerce---__________-_____-_ 3
‘3 B. Necessary allegations as to beneficiaries _ _ _ 4
i C. Necessary allegations as to damages _ - _ _ _ _ 5
l D. Allegations in regard to negligence of the
} defendant______H______-__________-_ 5
l E. Necessary allegations in regard to assump-
5, tionofrisk_________-________________ 6
'1
i III. PRACTICE AND PROCEDURE.
" A. What questions should be submitted to the
l B. When and how the application of the Fed—
! e¥al Statutes may be set up for purposes
. o :

, ‘. lTilal 7
i 2. Appeal to the Supreme Court of the
‘ United States:
! a.FromStatecourts____________-__ 8
b. From Federal courts _ _ _ _ _ _ _ _ _ _ _ . _ 9
i‘ C. Joinder of causes, departure and variance _ _ 9
[‘ D. Amendment after the lapse of the statutory
l. periodoftwoyears___________________13
i E. Removal of causes from the State to the
; Federal Couit 13
,1 F. What questions may be reviewed in the
r," Supreme Court of the United States:
I: 1. On appeal from the State court_ _ _ _ _ _ _ 14
' 2. On appeal from the Federal court_ _ _ _ _ 16
l‘ i
l
l
l
I

 . A
. 1 W. PARTIES. PAGE , . PAGE
A A. Plaintiff and beneficiary_-_-__--___-_-__ 17 VH'Af‘éfigrfilggcmne________________________ 31
3 Defendant ————————-——-——--------------- 19 . B. Doctrine applied in particular cases:
1. Cases in which it was held that the risk
V. DAMAGES—MEASURE AND ELEMENTS TO BE was assumed _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 32
CONSIDERED.- . 2. Cases in which it was held that it was a
A- Non'f‘i‘t‘fl mJury- - - - - - - - - - - - - - - - - — - - - - - - 19 question for. the jury Whether the risk
B.Fatalminer—-__-----_.—-—————-----————20 . was assumed_______-__--_---___--34
3. Cases in which it was held that the em—
VI. WHEN ENGAGED IN INTERSTATE COMMERCE. ‘ ploye did not assume the risk _ _ _ _ _ _ _ 34
A. The employs.
1- 031595 in WhiCh the employe was held VIII, CONTRIBUTORY NEGLIGENCE _ _ , _ _ _ _ _ _ - _ _ _ _ _ _ - 36
to be engaged in interstate commerce
at the time 9f.the accident: . I X. VIOLATION OF THE FEDERAL STATUTEs ENACTED
a. While repairing apphances used In FOR THE SAFETY OF EMPLOYES- _ _ _ _ _ _ _ _ _ _ _ 37
interstate commerce _ _ - _ _ _ _ _ - _ _ _ 23
b' While on the way to and from work - 24 X. CONTRACTS RELIEVING THE CARRIER FROM
0. While preparing new appliances to LIABILITY _ 38
be used in the future in interstate I I I I I
commerce_ - - - - - - - - - - - - - - - - 25 XI. WHAT LAW APPLIES.
d‘ While otherw1se employed _and 1n— A. To what extent the Federal law supersedes
eidentally connected With the the State law _ _ _ _ _ ‘ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 38
transportation 0f mterstate com— 25 B. In What respects the State law applies- _ _ - 4O
merce_______-_________________
2. Cases in which it was held that the em— XII. AGENCY.
ploye was not engaged in interstate A. To whom the carrier may be liable_-______ 42
commerce atthe time 9f hls 1nJury:. B. For Whose acts the carrier may be respon-
a. Wh1le repa1r1ng apphances used 1n- sible _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 42
discriminately in interstate and I I I I I I I I I I I I
intrastate commerce___________ 27 __________ 43
b. While on the way to and from work _ 28 XIII' RES JUDICATA I I I I I I I I I I I I I I I I
0. While preparing new appliances to
be used in the future in interstate . ,
commerce_____________________ 28
d. While otherwise employed and in-
cidentally connected with ifnter— .
state commerce________________ 29
B. The employer.
1. Cases in which the employer was held
, to have been engaged in interstate
‘ commerce at the time of the accident - 30
2. Cases in which the employer was held
not to have been engaged in interstate
commerce at the time of the accident _ 31
ii iii

 ‘ Federal Employers’ Liability Act
Cases on Collection of Undercharges on I. PREFACE.
Interstate Transportation, Freight
and Passenger.
The first Act of Congress (34 Stat. at L. 232, ch.
OUTLINE 3073), imposing a liability upon interstate carriers to
I. TRANSPORTATION OF FREIGHT. PAGE their employes for injuries sustained in service, was ap-
A. From whom charges may be collected_---_ 45 11 1 d d 1 d t't t' 1
B. Requisites for the establishment of the rate- 46 proved June ’ 9,06,.an. .was ec are uncons 1 u 1ona‘ ’
C. The necessity of actual knowledge on the in the Employers Liability Cases (Howard V. Illin01s
part of the shipper as to the established C. R. Co.), 207 U. S. 463. The court held that, since the
rate-_.-_-___-_-_-_--_____---_------- 46 - .
D. Effect of a mistake of the agent of the car- power of Congress, derived from the commerce clause of
rier in quoting rate, orof express'agree- the Constitution, did not extend to matters bearing no
301181}? contrary ’00 COHdlthDS Prescribed in 47 substantial relation to interstate commerce, and since the
ari s--____-______-__-----___-___--- u . . .. ._
E. Mistake of agent of carrier in consigning Act attempted to regulate the llablllty. of every cairier
freight over long route when shorter in interstate commerce, Whether by railroad or other-
route isavailab1e_____-____-_____-_-_- 49 wise, for any injury to any employe, even though his
F. Proofofrates__-____-____ -.__--------__ 50 1 h d t‘ h t ‘th . t
G. Courts in which action may be brought--- 51 emp oyment a no. 09111180 ion W a ever W1 1n er-
* state commerce” (IllinOis C. R. Co. v. Behrens, 233
H- TRANSPORTATION 0F PA§SENGERS . U. S. 473, 477), Congress had attempted to extend its
A. Collection of cases involvmg the rights of 1 . 1 . tt 1 h‘ h 't h d th ’t
passengers when traveling on rates that 9ng ation to ma ers ovei W 10 1 a no au on y.
have been filed with the Interstate Com- On April 22, 1908, a second Act was approved (35
meme Commission-——-———~——-v———~———— 51 St t t L 65 h. 149- U. s. C .St t. s .1911
B. Mistake of agent of carrier in selling ticket a ' a ' ’ C . ’ omp a upp ’ p.
over long route when shorter route is 1322), and on April 15, 1910, this Act was amended (36
. available__ -_-____________________ 56 Stat. at L. 291, ch. 143; U. S. Comp. Stat. Supp. 1911, '
l p. 1324). The Act as amended was declared to be con-
stitutional, in the Second Employers’ Liability Cases
(Mondou V. New York, N. H. & H. R. Co., 223 U. S. 1).
iv 1

 ‘I
In this second Act “it is clear that Congress intended II. PLEADING.
to confine its action to injuries occurring when the par-
ticular service in which the employe is engaged is a part
of interstate commerce” (Illinois C. R. Co. V. Behrens,
233 U. S. 473, 478; Pedersen V. Delaware, L. & W. R.
Co., 229 U. S. 146, 150). A. NECESSARY ALLEGATIONS IN REGARD To
While in the first Act Congress attempted to go be- INTERSTATE COMMERCE.
yond its power in making the statute so broad as to
include employes in no way connected with interstate
commerce, yet in the present Act, as construed by the
Supreme Court, it has not gone to the limit of its power In order to recover in an action based upon the Federal
upon the subject. In the only case yet decided by the statute the plaintiff should allege that the defendant, at
Supreme Court "in which it was held that an employe of the time of the accident, was a common carrier engaged
a railroad company which was engaged in interstate com- in interstate commerce, and that the plaintiff (or the
merce was not himself engaged in such commerce at the deceased) was employed by the defendant and was en-
time of the accident and, hence, could not base his action gaged in interstate commerce at the time of the accident.
on the Federal statute, the court said: 248N§4t§ Gagging}. 1130(5)). V. Zachary, 232 U. S.
u . . . . . . _ ; up. . ep. .
juries Suffered btyilea 1111121311113 offtlifitlelgrecvgliliiilhefggui'lsle St' Louis, S' F“ & T' Ry. 00' V‘ Scale, 229 U' S'
of its general work was subject to regulation by 156; 158; 33 Sup. Ct' Rep. 651'
Congress, whether the particular service being per— Shade v. Northern Paclfic Ry. Co., 206 Fed. 353.
are, are.tangerine;amaze: may be ...... ......
(Illinois C. R. Co. V. Behrens, 233 U. S. 473, 477). Kelly’s Adm’x V. Chesapeake & O. Ry. Co., 201
Fedszgfd Trunk Western Ry. Co. V. Lindsay, 201
Fed. 836; affirmed, 233 U. S. 42; 34 Sup. Ct. Rep. 581.
Atlantic Coast Line R. Co. v. Reaves, 208 Fed.
141.
Where the plaintiff makes the necessary allegations
and proof in regard to interstate commerce the Federal
1 statute applies even though no reference is made to it at
, the trial.
Grand Trunk Western Ry. Co. v. Lindsay, 233
U. S. 42; 34 Sup. Ct. Rep. 581.
2 3

 An allegation that the employe was, at the time of the C. NECESSARY ALLEGATIONS AS TO
accident, a brakeman or a fireman employed by the DAMAGES.
defendant railroad on a train moving between named
pomts in different SF 84166.5, ls sufficient. Unless, in an action for the death of an employe,
Seaboard Alr Line Ry. V. Duvall, 225 U. S. 477, ,
482' 32 Sup. Ct. Rep. 79()_ recovery 1s sought, under the Amendment of 1910, for the
Ft. Worth & D- 0 RY- 00- V- 3133101113, 157 S- W- pain and suffering of the deceased, pecuniary loss to the
279 (Tex, 1914). - - .
Rowlands v. Chicago &. N. W. R. Co., 149 Wis. benefimn‘f’s ?hould be alleged
51. 135 N. w_ 156. Michigan Central R. Co. V. Vreeland, 227 U. S.
’ 59, 74; 33 Sup. Ct. Rep. 192.
Carolina, C. & 0.. Ry.v. Shewalter, 161 S. W. 1136
(Tenn, 1913).
Illinois Central R. Co. V. Porter, 207 Fed. 311.
B. NECESSARY ALLEGATIONS AS TO _

BENEFICIARIES. It would seem that where recovery is sought for the
pain and suffering of the deceased, the petition should,
at least, allege that the beneficiaries were dependent upon

If the petition fails to allege that the decedent is the deceased:
. d b d b fi . . . Michigan Central R. Co. V. Vreeland, 227 U. S.
surv1ve y a person or persons name as ene Ciarles 1n 59; 33 Sup. Ct. Rep. 192.
the Federal statute, it is bad on demurrer. Cincinnati, N. O. & T. P. Ry. Co. V. Wilson’s
111' ' C 13‘ 1R. C . . D h t a A ;,1 Adm’r, 157. Ky. 460; 163 S. W. 493.
Ky. 3252151559§1€§7 1119.0 V 0 er y S dm r 53 St. Louls & S. F. R. Co. v. Conartyl, 106 Ark. 421;
Thomas v. Chicago & N. w. Ry. Co. 202 Fed. 766. 155 S- W- 93-
North Carolina R. Co. V. Zachary, 232 U. S.
248, 256; 34 Sup. Ct. Rep. 305.
Where the beneficiaries are the children of the deceased D. ALLEGATIONS IN REGARD TO NEGLIGENCE
the plaintiff Should state the number of the surviving OF THE DEFENDANT.
children and their ages.
Chesapeake & O. Ry. Co. v. Dwyer’s Adm’x, 157
Ky. 590; 163 S' W' 752' A general allegation of negligence on the part of the
defendant is sufficient, in actions brought in the State
court, where such allegations are permissible in actions
for torts based upon the law of the State.
Louisville & N. R. Co. v. Stewart’s Adm’x, 156
Ky. 550; 161 S. W. 557.
4 5

 E. NECESSARY ALLEGATIONS IN REGARD TO 3 WHEN AND HOW THE APPLICATION OF THE
ASSUMPTION OF RISK. FEDERAL STATUTE MAY BE SET UP FOR
PURPOSES OF (1) TRIAL AND (2) AP-
PEAL TO THE SUPREME COURT
Where the defendant affirmatively pleaded the de— OF THE UNITED STATES'
fense of assumption of risk it was held that it was en-
titled to an instruction setting out this defense when
there was evidence to sustain it. 1. Trial.
Cincinnati, N. O. & T. P. Ry. Co. V. Goldston,
156 Ky. 410; 161 S. W. 246. .
The following case was pleaded and tried under the
It has been held that the defense 0f assumed risk, to State law. The jurisdictional facts for the application
be available, should be affirmatively pleaded. of the Federal statute were brought out in evidence,
Lloyd V- 3011*»th RY- 00-, 81 S- E 1003 (N- C- but the point was not mentioned at the trial nor in the
1914). . . . .
See, also, Labatt on Master and Servant (2nd appeal from 3. Judgment 1n favor of the plaintiff. The
Ed), sec. 1636. ' Appellate Court reversed the judgment and directed
that a peremptory instruction be given in favor of the
defendant. In a petition for rehearing, however, the
plaintiff called the Court’s attention to the facts appearing
III. PRACTICE AND PROCEDURE. in the record which made the Federal statute applicable,
and the case was sent back for a new trial.
Cincinnati, N. O. & T. P. Ry. Co. v. Goode, 155
Ky. 153; 159 S. W. 695.
A. WHAT QUESTIONS SHOULD BE SUBMITTED T0 In the case of Moliter v. Wabash R. CO., 168 S. W. 250
THE JURY. (Missouri, 1914), the plaintiff stated only a cause Of ac—
tion at common law, but at the trial brought out facts
which would make the Federal statute applicable. It
If, upon the evidence, any essential matter of fact be in was held that there COllld be 110 I‘GCOVGI‘Y-
i doubt, it should be submitted to the jury under proper . In Vickery v. New London N. R. C 0., 89 Atl. 277
instructions. . (Conn., 1914), it was held that where the defendant set
248§§g§13 3(43agfighzbtRRSpo.36.5.Zachary, 232 U“ 8' up the jurisdictional facts for the application of the
b, 7

 ll ,
Employers’ Liability Act and the plaintiff admitted the In Seaboard Air Line Ry. V. Duvall, supra, it was held
truth of these allegations, the plaintiff could recover under that the Federal question was not sufficiently raised to
the Federal statute. give the United States Supreme Court jurisdiction.
In the case of Rich V. St. Louis & S. F. R. Co., 166 U. SségggisgahS/Ifiiog?’RKepgcngy 00' VI West, 232
Mo. App. 399, 148 S. W. 1011, an action was brought by
the wife, suing in her individual capacity. The defendant b. In Federal Courts.
set up the jurisdictional facts making the Federal
statute applicable. The plaintiff was denied recovery. Where a case arises under the Federal statute the
Federal Supreme Court has appellate jurisdiction provided
the jurisdictional amount is involved.
2. How the Federal Question Must be Raised in (a) State Southern Ry. Co. v. Gadd, 233 U. S. 572;
and (b) Federal Courts in Order to Give the Federal 34 SUP- Ct- Rep. 596-
Supreme Court Appellate Jurisdiction.
a. In State Courts. C. JOINDER OF CAUSES, DEPARTURE
It must appear from the record that there was neces- AND VARIANCE.
sarily a definite issue as to the correct construction of the
Federal Act, so directly involved that the court could not . .
have given the judgment it did give without deciding In Lou1sv1lle & N. R. (.30. v. Strange’s Adm’x, 1:56. Ky.
against the plaintiff in error. T139; 161 S. W. 239, an action to recover for a fatal injury,
Seaboard Air Line Ry. v. Duvall, 225 U. S. 477; 113 was held that the plaintiff could not allege in the
32 Sup. Ct. Rep. 790. alternative that the accident did or did not occur in the
For cases in which it was held that the Federal course of interstate commerce, and that he could be com—
question was sufficiently raised, see: pelled to elect as to the law upon which the action was
St. Louis, S. F. & T. Ry. Co. v. Scale, 229 U. S. based. .
156; 33 Sup. Ct. Rep. 651.
St. Louis I. M. & S. Ry. Co. v. McWhirter, 229 In Louisville & N. R. Co. v. Moore, 156 Ky. 708, 161
U' IV 31951; girihlfiflacfg R3312??? Zachary, 232 U. S. S. W. 1129, an action for a non—fatal injury, the plaintiff
g 248; 34 Sup. Ct. Rep. 305. at first omitted the allegations as to interstate commerce,
702S1§3L§uis,(1thR& S. By. 00. v. Hesterly, 228 U. S. and then, by amendment, sought to join an alternative
’ up. ' ep. 703' count under the Federal statute. The court held that a
motion to elect should have been sustained, but that the
8 9

 ‘
failure of the lower court to sustain the motion did not tion containing allegations sufficient to state a common-
constitute a reversible error. law cause of action. However, this portion of the opinion
‘ _ was later withdrawn as unnecessary to the decision of
F' In ::uth fgfigtoio 81550S VS. 741337: CO'h I; the case. (Jones V. Chesapeake &O. Ry. Co. 153 Ky. 378.)
man’s m’x, y. ; . . .., 113 was s
that Where it was admitted that at the time of the injury The followmg cases contam language to the effect
the Federal statute applied, the plaintiff must prosecute that where the plaintiff alleges the jurisdictional facts
his action under that statute. which make the Federal statute applicable, recovery can
be had only under that statute:
The case Of Wabash R. CO. V. Hayes, 234 U. S. 86; Kelly’s Adm’X V. Chesapeake & O. Ry. CO. 201
34 Sup. Ct. Rep. 729, contains a dictum to the effect that Fed. 602, .
alternative counts under the com 11 la and the F d l Stafford V- Norfolk & W- Ry. 00- 202 Fed. 605-
Statute can be joined 0 W e em Rice v. Boston & M. R. R. 203 Fed. 580.
See, also, Bankson v. Illinois Central R. Co., 196 It has been held that it amounted to a departure to
Fed. 171. set up in a replication 3 cause of action under the Federal
In Grow v Oregon Short Line 138 Pac 398 (Utah statute When in the petition there appeared only a. com-
1914), it was stated that the plaintiff could recover at mon—lachla use 0:) acsloil'v t R C 89 Atl 629
common law although under the Federal statute the (Vt. 1196184;' on re. ermon y. 0' '
defendant would not be liable. White V. Central Vermont Ry. Co. 89 Atl. 618
(Vt. 1914.).
In Southern Ry. Co. v. Howerton, 105 N. E. 1025 . S .
(Ind., 1914), Where the allegations and proof were suffi- So, where the allegatlons 1n regard to interstate com-
cient under the Federal statute but the case was sub- merce were set up by amendment:
mitted on the common—law theory, which was less favor— S V¥C?§§VEM; K133113135 Clty Western R" CO' 164
able to the plaintiff than the law established by the statute, ' . ., '
it was held that a verdict for the plaintiff should not be In the case Of MOH'DGI' V- Wabash R. 00-, 168 S. W-
disturbed. 250 (Mo., 19141), the petition did not contain the
necessary allegations as to interstate commerce but the
In the case Of Jones V' Chesapeake & 0' Ry. 00' facts makin the Federal statute a licable a cared
149 Ky. 566’ 149 S' W' 951’ where the action was based at the trial gIt was held not onl thaptpthere coulrdpbe no
L on the Federal statute and the plaintiff failed to prove recover but that the etition 0:111 d not be amended to
that he was engaged in interstate commerce at the time of confornir to the roof 11:1 as much as there ha d been a
the accident, it was stated he was entitled to have his complete varianfe ’
case submitted under the common-law theory, the pet1- But compare the above decision with that of
10 Cincinnati, N. O. & T. P. Ry. Co. v. Goods, 155
Ky. 158; 159 S. W. 695 (III, B, 1, supra).
11

 1‘ ' 3
1 .
In Gaines V. Detroit, G. H. & M. Ry. Co., 148 N. W. D. AMENDMENT AFTER THE LAPSE OF THE STATUTORY
397 (Mich, 1914), the plaintiff did not make the PERIOD OF Two YEARS.
necessary allegations in regard to interstate commerce,
but it appeared in the evidence that the Federal statute
was applicable. The lower court submitted the case on The plaintiff may be changed from a person suing in
the count at COREY—1011 law, and the jury returned a ver— his individual capacity to one suing in a representative
dict in favor 0f the defendant. The judgment was capacity, after the expiration of the two year period
reversed, the court holding, however, that the plaintiff within which an action must be brought under the
must rely upon the Federal statute in order to recover. Federal statute.
- . M' ', K. & T. R . Co. v. Wulf, 226 U. S.
In the case of Hogarty v. Philadelphla & R. Ry. Co., 570; éZSOélgi). Ct. Rep. 13:5
91 At]. 854 (Pa, 1914), the plalntlff stated only
pleaded that the plaintiff had accepted the benefits of the expiration 0f the statutory period, by adding the
its relief association, thus releasing defendant from lia— necessary allegat1ons in regard to interstate commerce.
bility. The plaintiff then set up the provision of the Smith V‘ Atlantic Coast Line R“ CO" 210 Fed.
. . . . . 761.
Federal statute prohibiting a carrier from exempting
itself from liability, and proved the facts which would
make the Federal statute applicable. It was held that E. REMOVAL OF CAUSES FROM THE STATE TO
thls was not such a variance as would entitle the defend- THE FEDERAL COURT.
ant to a peremptory instruction.
In Fernette v. Pere Marquette R. Co., 144 N. W.
834 (Mich, 1914), the plaintiff failed to allege that When an action is based on the Federal Employers’
the defendant was engaged in interstate commerce at Liability Act it is not removable to the Federal Court on
the time of the accident. On appeal it was pointed out any ground.
that the Federal statute applied, but the judgment for McChesney v. Illinois Central R. Co., 197 Fed. 85.
plaintiff was sustained on the ground that by a State Fe dDgé‘ltley V' Chesapeake & 0' Ry. CO" 201
statute the appellate court had authority to amend the Teel v. Chesapeake & 0. Ry. Co., 204 Fed. 918.
pleadings to conform to the proof, and under the cir— Patton v. Cincinnati, N. O. & T. P. Ry., 208
‘ cumsta c the l d' ' ' . Fed. 29‘ .
C n es . p eaungs were consideied as amended Eng v. Southern Pamfic Co., 210 Fed. 92.
ompare Wlth thls case the case Of Pankey v. Atchison, T. & S. F. Ry. Co., 168 S.
Kenney v. Seaboard Air Line R. Co., 80 S. E. W- 274 (Mon 1914).
1078 (N. 0., 1914).
12 13

 But see: to be shielded from liability, under a proper application
Stephens V. Chicago, M. & P. S. Ry. Co., 206 of the statute. This includes the question as to whether
F (Edi-331?: t t v. Spokane, P. & S. Ry., 210 Fed 94:. or not there was sufficient evidence of the defendant’s
Thomas v. Chicago & N. W. R. Co., 202 Fed. 11ab1hty to warrant a submlssmn to the Jury.
766. St. Louis, I. M. & S. Ry. Co. V. McWhirter, 229
U. S. 265; 33 Sup. Ct. Rep. 858.
In EX parte Roe, 234 U. S. 70, 34 Sup. Ct. Rep. 722,
the Federal Court had held thatacase arising under the The construction 0f the statute by a lower court,
Federal statute was removable on the ground that the allowing recovery in a death case in the absence of proof
carrier held a Federal charter. The Supreme Court Of the designated beneficiaries, is reviewable.
declined to pass upon the correctness of the lower court’s 248N§Ztguga18iinR 8113‘- Logg- V- Zachary, 232 U- S-
ruling in this respect, but held that a writ of mandamus Culf, C. '& S: F. Ry. CE). v. McGinnis, 228 U. S.
was not the proper method to test the question. 173; 33 Sup. Ct. Rep. 426.
The ruling of the State court in permitting a person
- who is not the personal representative of the deceased
F. WHAT QUESTIONS MAY BE REVIEWED IN THE employe, ’00 I‘GOOVGI‘, iS reviewable.
SUPREME COURT OF THE UNITED STATES. St. Louis, S. F. & T. Ry. Co. V. Scale, 229 U. S.
156; 33 Sup. Ct. Rep. 651.
The error of a lower court in allowing the plaintiff
1. 0n Appeal from the State Court. to recover for pain and suffering in a death case where the
accident occurred before the Amendment of 1910, is
In actions coming from the State courts, the Supreme reviewable in the United States Supreme Court.
Court is not a court of general review, though if the trial U. $553132 $113465” 136133905“ V' Hesterly, 228
court erroneously construes the statute, or refuses to
give a particular instruction construing the statute, to In 801115119111 RY. 00- V- Bennett, 233 U- S- 80; 34
which a party is entitled, and the point is properly saved, SUP- Ct. Rep- 565, the court intimated a doubt as to
the question may be reviewed. whether the rulings of the State court in regard to or—
Seaboard Air Line Ry. v. Duvall, 225 U, S. 477, dinary questions of negligence were reviewable in the
32 SUP- Ct. Rep. 790- Supreme Court, and stated that when a case was appealed
The Supreme Court has held that it will consider on this ground the question W0111d be dealt With in a
only the Federal questions involved, i. e. the existence summary way. It was held that the question 0f 6X-
of the right of the plaintiff to recover or of the defendant
14 15

 l

cessive damages was not open in an appeal to the Supreme was taken to the Supreme Court. It was held that as
Court. the jurisdiction of the court depended on a ground other
ZBZSUCSCIESSS2-l\3/{AiissS(iig.i,CI§RipT47lfy. CO“ V' West, than that of diversity of citizenship, and as the amount
’ in controversy exceeded $1,000, the judgment of the
In general, questions as to practice and procedure lower court was not final and the question could be re-

must be governed by the State law and will not be re— Viewed in the Supreme Court.
Viewed by .the Supreme Court: . In Pedersen V. Delaware, L. & W. R. Co., 229 U. S.

Brmkmeier V. Missouri Paelfic Ry. Co., 224 U. S.

268, 270; 32 Sup. Ct. Rep. 412 146; 33 Sup. Ct. Rep. 648, the appeal was taken on the
ground that the lower court had improperly held that the
employe was engaged in interstate commerce at the time

2. 0n Appeal from the Federal Court. of the accident.

In cases based on the Federal statute coming from
the Federal courts it is the duty of the Supreme Court IV. PARTIES.
to pass upon all questions for decision, even though they
do not involve an interpretation of the Federal statute
upon which they are based. However, when only
questions of common-law negligence are involved, the A. PLAINTIFF AND BENEFICIARY.
lower court will not be reversed unless it clearly appears
that error has been committed, and, unless it further
appears that there were reasonable grounds for the appeal, Where the action is brought in the name of the widow
five per cent damages Will be awarded. of a deceased employe, suing in her individual capacity,

Southern Ry. 00- V- Gadd, 233 U- S- 572; 34 there can be no recovery if it appears that the Federal

Sup. Ct. Rep. 696. .
statute applies.

Compare with the case last above cited, the case of: St. Louis, S. F. & T. Ry. Co. v. Scale, 229 U. S.

Seaboard Air Line v. Moore, 228 U. S. 433; 33 156; 33 Sup. Ct‘ Rep. 651'
Sup. Ct' Rep. 580' . The want of legal capacity of the plaintiff to sue
In the case of Missouri, K. & T. Ry. Co. v. Wulf, 226 individually under the Federal statute goes to the sub-
U. S. 570; 33 Sup. Ct. Rep. 135, the lower court allowed stance of the action, and the defect can not be waived.
an amendment making the personal representative a Missouri, K. & T. Ry. Co. v. Lenahan, 39 Okla.
party, after the lapse of the statutory period within which 283; 135 Pac. 383’
an action could be brought, and 011 this ground an appeal 17
1e

 In case of the death of an employe, two distinct and he had no next of kin, and that, though he contributed to
independent liabilities result (Michigan Central R. Co. the support of his father’s widow and children, they were
v. Vreeland, 227 U. S. 59, 65), but there can be only not beneficiaries under the Act and, therefore, there
one recovery, and that in favor of the personal representa— could be no recovery.
tive for the benefit of the beneficiaries named in the
statute. ' B. DEFENDANT.

St. Louis, I. 1\/I. & S. Ry. Co. V. Hesterly, 228
U. S. 702; 33 Sup. Ct. Rep. 703.

A subsequently appointed ancillary administrator The Federal statute was not intended to apply to
may, .Wlth the approval of the domlclllary administrator, vessels generally, and in no event does it apply to a ship
who 15. the Chlef benefiClary, sue as the personal repre— moving under a charter and not under a regular schedule.
sentatlve. . . . The Pawnee, 205 Fed. 333.

FedAgggrSOD V- Lou1sv1lle & N- R- CO” 210 A lumber company, though chartered as a common
' ' carrier, can not be held under the Federal statute when it

Only the personal representative can revive an action handles only its own lumber.

begun by a deceased employe under the Federal statute. Bay v. Merrill & R. Lumber Co., 211 Fed. 717.
St. Louis S. R. Co. v. Brothers, 165 S. W. 488
(Tex, 1914).

Where the beneficiaries are non-resident aliens there

can be 110 I'GCOVGI‘Y- V. DAMAGES—MEASURE AND ELEMENTS
McGovern v. Philadelphia & R. Ry. Co., 209 TO BE CONSIDERED.
Fed. 975. .

Where the evidence fails to show that the decedent was
survived by any person naturally or actually dependent
upon him, there can be no recovery under the Federal A- NON-FATAL INJURY-
statute.

Illinois Central R. Co. v. Doherty’s Adm’r, 153
KY- 363? 155 S- W- 1119- In Michigan Central R. Co. v. Vreeland, 227 U. s. 59;

In Cincinnati, N. o. &. T. P. Ry. Co. v. Wilson’s 33 Sup- Ct- Rep- 19113116 courtsaid (P- 65)=

Adm’r, 157 Ky. 460; 163 s. w. 493, the decedent was an “If he had survived he might have flowered 8110.11
' . d b t f d1 k It h 1d h t damages as would have compensated him for hls
unmalrie man orn ou 0 we 00 - was e t a expense, loss of time, suffering and diminished
18 earning power.”
19

 See, also: ‘ damages for pain and sufiering, in actions accruing since
Nashville, C. & St. L. R. Co. V. Henry, 158 Ky. the amendment of 1910), nor can recovery be had for loss
88§11I64hS-,1‘1N- 331035 St L R C B k 1 6 K of society, companionship, or acts of kindness growing

609; legl V81. elT. 554, . . . O. v. an S, 5 y. out of relationship, or for wounded feelings.
Michigan Central R. Co. V. Vreeland, 227 U. S.

59; 33 Sup. Ct. Rep. 192.
New York C. & St. L. Ry. Co. V. Niebel, 214
B. FATAL INJURY. Fed. 952.

However, there may be recovery for loss of services of

The measure Of damages is the amount WhiCh Will a husband, wife, or child, and where the beneficiary is a
compensate the surviving beneficiaries for the actual child there may be recovery for the care, training, counsel,
pecuniary loss, and the jury should apportion the amount and education which, under the evidence, it might have
among them according to the 1055 Of each. received from the parent and which can be supplied only

Kygglgegeeggkgexefifoygy 00' V' Dwyer’s Adm’x, 157 by the service of another, for compensation. Thus
it will be seen that the elements vary in accord-

The case of Hardwick v. Wabash R. CO., 168 S. W. ance with the parties who may be the beneficiaries in the
328 (Mo., 1914), was to the same effect as to the particular action. It must appear, however, that there
measure of damages, but it was held that the failure to was a reasonable expectancy of support and assistance.
apportion the damages among the beneficiaries was not The legal liability to support is not the sole test.

a reversible error where no instructions to that effect were Michigan Central R. Co. V. Vreeland, 227 U. S.
asked and no objection or exception made to the verdict. 59; 33 Sup. Ct‘ Rep. 192'

Recovery can be had only in favor of the beneficiaries No recovery can be had for d