who are receiving a weekly payment. The workman may be required from time to time to submit himself to a medical practitioner provided by the employer, and refusal has the effect of suspending the weekly payment. If there is a difference of opinion between the workman's own medical advisor and the employer's, the question at issue may be referred to an official medical referee, who can issue a certificate as to the workman's real condition. DONALD MACKAY.

Glasgow, Scotland.

FOR WHOSE BENEFIT RECOVERY MAY BE HAD FOR DEATH UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.

Generally. The Federal Employers' Liability Act provides that for the death of an employe covered by its provisions and due to the negligence of the empolyer or its agents or employes, such employer shall be liable in damages "to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employee." An amendment enacted. in 19102 provides: "That 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 employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, but in such case there shall be only one recovery for the same injury."

(1) Act of Congress, April 22, 1908. (2) Act of Congress, April 5, 1910.

(3) The act applies in Porto Rico American R. Co. v. Birch, 224 U. S. 547, 32 Sup. Ct. 603, 56 L. Ed. 879, rev'g. 5 P. R. Fed. Rep. 273.

The construction of the Federal Employers' Liability Act, in its essentials, follows the construction given the Lord Campbell's Act in England, not as a mere continuance of the right of the injured employe in favor of his estate, but as granting a new and independent cause of action for the benefit of the dependent relatives named in the statute.1

The Act limits the right of recovery for the benefit of the beneficiaries named, in the order named. Consequently, it necessarily follows that if there is no beneficiary for whom recovery can be had, there can be no recovery. And so, in such an action, if the petition does not allege that the employe left surviving him a beneficiary or beneficiaries in whose behalf a recovery can be had, it fails to state a cause of action."

The action must be maintained by the personal representative of the deceased for the benefit of the persons named in the statute. And this is true although a statute of the state or territory, in a court of which the action is brought, gives a right to the heirs as well as to the personal representative to maintain such an action."

When suit is brought to recover on behalf of certain beneficiaries other than the wife or husband and children of the deceased employe, the plaintiff must allege and prove that there are no dependents named in the statute as having a prior right to recover to those for whom recovery is

(4)

Fogarty v. Northern Pac. R. Co., 85 Wash. 90, 147 Pac. 652.

(5) Illinois Cent. R. Co. v. Doherty, 153 Ky. 363, 155 S. W. 1119, 47 L. R. A. (N. S.) 31; Cincinnati, N. O. & T. P. R. Co. v. Wilson, 157 Ky. 460, 163 S. W. 493, 51 L. R. A. (N. S.) 308; Melzner v. Northern Pac. R. Co., 46 Mont. 277, 127 Pac. 1002.

(6) American R. Co. v. Birch, 224 U. S. 547, 32 Sup. Ct. 603, 56 L. Ed. 879, rev'g. 5 P. R. Fed. Rep. 273.

(7) American R. Co. v. Birch, 224 U. S. 547. 32 Sup. Ct. 603, 56 L. Ed. 879, rev'g. 5 P. R. Fed. Rep. 273.

Under the Act, prior to the 1910 amendment, it was held that, in order to recover for the death of an employe, it must be shown that the person for whom recovery was sought had at least a reasonable expectation of pecuniary benefit from a continuance of the decedent's life. The amendment of 1910, however, provides that any right of action given by the Act to a person suffering injury shall survive to his or her personal representative, etc. Under this provision it seems that recovery may be had on account of pain and suffering of the deceased in behalf of the surviving wife or husband and children, or parents, of the deceased, regardless of a pecuniary loss to them. Of course, recovery may also be had for the actual loss to them.

While it was not necessary, to support a recovery in behalf of the wife or husband and children, or parents of the deceased, that they be dependent upon deceased for their support, or any part thereof, it was essential that it be shown that there was,

at least a reasonable expectation of pecuniary assistance from the deceased." It was not necessary to prove that deceased made actual contribution to their support.10

Recovery may be had under this Act in behalf of nonresident alien relatives.11

The settlement of her claim by one beneficiary does not affect the right of the ad

(8) Moffett V. Baltimore & O. R. Co., 220 Fed. 39, 135 C. C. A. 607.

(9) Dooley v. Seaboard Air Line R. Co., 163 N. C. 454, 79 S. E. 970; Carolina, C. & O. R. R. V. Shewalter, 128 Tenn. 363, 161 S. E. 1136, Ann. Cas. 1915, C. 605. aff'd. 239 U. S. 630, 36 Sup. Ct. 166; Garrett v. Louisville & N. R. Co., 197 Fed. 715, 3 N. C. C. A. 769, 117 C. C. A. 109.

(10) Pittsburgh, C., C. & St. L. R. Co. v. Collard's Adm'r., Ky., 1916, 185 S. W. 1108.

(11) Bitondo v. New York Cent. & H. R. R. Co., 163 App. Div. (N. Y.) 823; Bombolic v. Minneapolis & St. L. R. Co., 128 Minn. 112, 150 N. W. 385; McGovern v. Philadelphia & R. R. Co., 235 U. S. 389.

Widow. When there is a surviving widow she is entitled to the whole of the recovery as against a parent or persons farther removed in degree of relationship.13

Abandoned widow or children.-The fact that a wife was temporarily separated from her husband at the time he met his death does not deprive her of the right to recover under this Act for his death.14

If there was a legal duty on the part of deceased to furnish assistance and support to his wife and children, and it is shown that he was able through his earning power to meet that duty, the fact that he had abandoned his family with the intention of not supporting or aiding them in the future does not affect the right of action of the widow and children to recover for his death; the fact is material only in mitigation of damages to them occasioned by his death.15

"If, in addition to the legal liability, there was shown an earning power and capacity

of the deceased, such that, had he lived, the legal right to pecuniary assistance or support might have been enforced as a thing real and measureable, pecuniarily valuable, then it cannot be said, as matter of law, that there was no reasonable expectation of such assistance and support, even though it had not theretofore been voluntarily given. Such legal ability accompanied by proof of liability of the deceased to have met the legal duty, also meets the other requisite read into the act by the United States Supreme Court in defining 'the pe

(12) Pittsburgh, C., C. & St. L. R. Co. v. Cllard's Adm'r., Ky., 1916, 185 S. W. 1108.

(13) Goen v. Baltimore & O. S. W. R. Co., 179 Ill. App. 566; Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 6 N. C. C. A. 436, 58 L. Ed. 638, rev'g., 204 N. Y. 135, 97 N. E. 502, Ann. Cas. 1913 D 276.

(14) Dunbar v. Charleston & W. C. R. Co., 186 Fed. 175.

(15) Fogarty V. Northern Pac. R. Co., 85 Wash. 90, 147 Pac. 652.

cuniary loss and damage' as 'one which can be measured by some standard.' To hold otherwise would be to hold the right to enforce assistance or support by the wife and child a thing of no pecuniary value."1

If the undisputed evidence shows that the widow, since being abandoned by the deceased, led a dissolute life such as to absolve the husband of all legal duty to support her, she cannot recover for her husband's death. However, conflicting evidence on this question is for the jury.17

Minor child.-A minor son was entitled to participate in a recovery for the death of his father, although at the time of the death he was not receiving aid from his father, and although his mother had obtained a divorce from his father; the son being without means of his own. In such case the legal liability of the father to support the son was said to be alone sufficient to constitute some ground of reasonable expectation of pecuniary benefits to be derived from a continuance of the father's life.18

Adult child.—A married woman who lives with and is maintained by her husband is not entitled to participate in a recovery for the death of her father; it not appearing that she was in any way dependent upon her father for support, or that she had any reasonable expectation of any pecuniary benefit from a continuance of his life.19

When recovery is sought in behalf of an adult son of the deceased employe, the burden is on the plaintiff to show that he was dependent on the deceased for a livelihood.20

(16) Fogarty v. Northern Pac. R. Co., 85 Wash. 90, 147 Pac. 652.

(17) Fogarty v. Northern Pac. R. Co., 85 Wash. 90, 147 Pac. 652.

(18) McGarvey v. McGarvey's Adm'r., 163 Ky. 242, 173 S. W. 765.

(19) Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173. 3 N. C. C. A. 806, 33 Sup. Ct. 426, 57 L. Ed. 785, rev'g. Tex. Civ. App., 147 S. W. 1188. (20) Birch v. American R. Co., 5 Porto Rico Fed. R. 273.

Parents.-There can be no recovery on behalf of a surviving parent, whether dependent or not, if the deceased employe left a widow or children.21 Hence, in actions to recover for the benefit of either parent, it must be alleged and proved that the deceased left no widow or children surviving him. Evidence of such fact need not be direct, however.22

Recovery was allowed in behalf of a married woman, who lived with her husband who was able and willing to support her, for the death of her son, who left neither widow nor child, and who lived with, and habitually gave the larger part of his earnings to his mother.23

Where it was shown that, although the father of a deceased employe was not actually dependent upon the deceased at the time of his death, he could not tell how soon he would be; that the deceased was a young man of good habits and character, in good health, and had helped his father and was disposed to give him his last cent if he needed it; and that the father was growing old, it was held that recovery could be had in the interest of the father.24

In an action in which it was shown that the deceased was about 16 years of age, in good health, sober, industrious, and earned $1.10 a day; that he contributed regularly to the support of his father; and his conduct toward his parent tended to show that he was, in mind and disposition, imbued with a proper conception of his filial duty and entertained the proper affection for his father, it was held that the evidence of a reasonable expectation by the father of benefit or pecuniary aid or other advantage of gift or inheritance, if the life of his son

(21) Moffett v. Baltimore & O. R. Co., 220 Fed. 39, 135 C. C. A. 607; St. Louis & S. F. R. Co. v. Geer, Tex. Civ. App., 149 S. W. 1178.

(22) Moffett v. Baltimore & O. R. Co., 220 Fed. 39, 135 C. C. A. 607.

(23) Moffett v. Baltimore & O. R. Co., 220 Fed. 39, 135 C. C. A. 607.

(24) Dooley v. Seaboard Air Line R. Co., 168 N. C. 454, 79 S. E. 970.