ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
The trial court on the verdict of a jury entered judgment against the plaintiff in error for the sum of $800 for the negligent killing of Capehart who was one of its employees, and this writ of error is prosecuted to reverse the action of the court below affirming such judgment. (167 Nor. Car. 14.) At the time of his death Capehart was a minor and was employed by the defendant company as a switchman. The accident occurred in North Carolina on an interstate freight train moving from a point in North Carolina to one in Virginia. The suit to recover was specifically based on the Employers' Liability Act of April 22, 1908, 35 Stat. 65, c. 149, as amended April 5, 1910, 36 Stat. 291, c. 143, and as both parties concede that that act was applicable, that subject may be put out of view.
The deceased was a natural or illegitimate child born in North Carolina, and the next of kin for whose benefit the administrator sued, he having been qualified at the alleged domicile of the deceased in North Carolina, were three minor children of the deceased's mother, the issue of a marriage by her contracted after his birth, she the mother being dead at the time of the accident. There was no question in the court below as to non-liability because of an absence of negligence, since as pointed out by the court the sole contention pressed upon it for reversal was that the damages for the death had been awarded to persons who were not entitled to the recovery an next of kin under the act of Congrss, even although they were the next of kin by the law of the State. Thus the court said: "The sole contention of the defendant requiring our consideration, is that the expression 'next of kin,' as used in § 1 of this act [the act of Congress] is to be construed by the common law, disregarding the state law defining those words." After then quoting from the state statute on the subject, the court further said: "It is very clear that in North Carolina the two half brothers and the sister of the intestate are his next of kin. It seems to us immaterial whether it were formerly otherwise in this State, either by statute or the common law before any statute. The question is, who was the 'next of kin' at the time of such death in the State where the wrongful death occurred?" Proceeding to examine and decide this question, it was held that next of kin for the purpose of the recovery under the act of Congress were the next of kin as established by the law of the State where the right to recover obtained. And it is the correctness of this ruling which we are alone called upon to consider, since despite the great number of assignments of error which are made, they all in last analysis depend upon that question. We need not stop to review the assignments to demonstrate this fact, since in argument they are all stated as embracing the solution of three
inquiries, which as we shall see when we consider them, will be virtually disposed of by deciding the single question concerning the correctness of the ruling of the court below as to the next of kin under the statute. The three questions thus stated are in substance as follows: First, whether the minor children who under the law of North Carolina were the next of kin of their natural or illegitimate brother because of their common motherhood were the next of kin under the act of Congress? Second, if in the absence of a parent they were so, would the proof of the existence of an asserted father of the deceased make such person his parent within the act of Congress, excluding the right of the next of kin to recover the damages? Third, if the minor brothers and sister were next of kin under the act of Congress, had they such dependency on the deceased as gave them any right to recover under the act?
We consider the questions separately.
1. There can be now no question that the act of Congress in so far as it deals with the subjects to which it relates is paramount and exclusive. It is therefore not disputable that recovery under the act can be had alone in the mode and by and for the persons or class of persons in whose favor the law creates and bestows a right of action. Second Employers' Liability Cases, 223 U.S. 1; Mich. Cent. R.R. v. Vreeland, 227 U.S. 59; Taylor v.. Taylor, 232 U.S. 363; Seaboard Air Line v. Horton, 233 U.S. 492, 501. But this is irrelevant, since the controversy concerns only the meaning of the act which it is conceded, when rightly interpreted, is entitled to exclusive operation.
Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But as, speaking generally, under our dual system of government who are next of kin is determined by the legislation of the various States to whose authority that subject is normally committed, it would seem to be clear that the absence of a definition in the act of Congress
plainly indicates the purpose of Congress to leave the determination of that question to the state law. But it is urged as next of kin was a term well known at common law, it is to be presumed that the words were used as having their common law significance and therefore as excluding all persons not included in the term under the common law, meaning of course the law of England as it existed at the time of the separation from the mother country. Leaving aside the misapplication of the rule of construction relied upon, it is obvious that the contention amounts to saying that Congress by the mere statement of a class, that is, next of kin, without defining whom the class embraces, must be assumed to have overthrown the local law of the States and substituted another law for it, when conceding that there was power in Congress to do so, it is clear that no such extreme result could possibly be attributed to the act of Congress without express and unambiguous provisions rendering such conclusion necessary. The truth of this view will be made at once additionally apparent by considering the far-reaching consequence of the proposition since if it be well founded, it would apply equally to the other requirements of the statute -- to the provisions as to the surviving widow, the husband and children, and to parents, thus for the purposes of the enforcement of the act overthrowing the legislation of the States on subjects of the most intimate domestic character and substituting for it the common law as stereotyped at the time of the separation. The ...