
    JOPLIN & P. RY. CO. v. PAYNE.
    (Circuit Court of Appeals, Eighth Circuit.
    March 7, 1912.)
    No. 3,625.
    1. Appeal AND Error (§ 237) — Motion at Trial — Necessity—Sufficiency OF EVIDENCE.
    On review of a judgment for plaintiff, the Circuit Court, of Appeals cannot determine the sufficiency of the evidence to sustain the recovery, where defendant made no motion for a directed verdict.
    [Ed. Note. — For other eases, see Appeal and Error, Cení. Dig. §§ 1386-1388; Dee. Dig. § 237; Trial, (’em. Dig. 228-252.)
    
      2. Appeal and Ebboe (§ 1004) — Review-—Excessive Damages.
    On review of a judgment for plaintiff in a personal injury action, tie Circuit Court of Appeals cannot determine whether the verdict was excessive.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.]
    3. Death: (§ 31) — Action by I-Iusband — Right to Maintain — “Next op Kin.”
    A husband is his wife’s “next of kin,” where she dies intestate and without children or direct descendants, within Code Civ. Rroc. Kan. § 422a, providing that certain actions for wrongful death may be brought by deceased’s “next of kin.”
    [Ed. Note. — For other eases, see Death, Cent. Dig. §§ 35-46, 48; Dec. Dig. § 31.
    
    Por other definitions, see Words and Phrases, vol. 5, pp. 4798-4804; vol. 8, p. 7732.]
    4. Coubts (§ 366) — Federal Courts — Conclusiveness oe State Decisions.
    A construction of a state statute by the highest court of the state, rendered before the accrual of a particular cause of action, is binding upon the federal courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. § 366.
    
    Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]
    
      5. Costs (§ 260) — Appeals eor Delay — Damages—Right to.
    On affirmance of a judgment for personal injury, plaintiff is not entitled to assessment of 10 per cent, damages, under Circuit Court of Appeals rule 30 (150 Fed. xxxv, 79 C. C. A. xxxv), on the theory that the writ of error was sued out merely for delay, where the Circuit Court of Appeals had given a different construction to a statute involved from that given in a subsequent decision of the Supreme Court of the state, which must now be regarded as binding on the Circuit Court of Appeals.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002,1003; Dec. Dig. § 260.]
    In Error to the Circuit Court of the United States for the District of Kansas.
    Action by Robert H. Payne against the Joplin & Pittsburg Railway Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Edward C. Wright (John P. Curran, on the brief), for plaintiff in error.
    C. A. McNeill (E. V. McNeill, on the brief), for defendant in error.
    Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER, District Judge.
    
      
      For other cases see same topic & § xuirshit in Bee. & Am. Bigs. DOT to date, & Rop’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   WM. H. MUNGER, District Judge.

Robert H. Payne brought this action against the Joplin & Pittsburg Railway Company to recover damages which he sustained on account of the death of his wife, who was a passenger upon the defendant road and lost her life in the state of Kansas through the negligence of the defendant. A trial was had, resulting in a judgment for plaintiff, and the railroad company seeks to have that judgment reversed.

There are three assignments of error: First, that the petition does not state a cause of action; second, that judgment was given for plaintiff, when it should have been for defendant; third,- that the judgment under the evidence is excessive.

As no request was made Cor a directed verdict at the close of all of the evidence, we cannot inquire as to the sufficiency of the evidence. Western Coal & Mining Co. v. Ingraham, 70 Fed. 219, 17 C. C. A. 71; Consolidated Coal Co. v. Polar Wave Ice Co., 106 Fed. 798, 45 C. C. A. 638: Oswego Township v. Travelers’ Ins. Co., 70 Fed. 225, 17 C. C. A. 77.

This court is also precludeJ from considering the question as to whether the verdict was excessive. Illinois Cent. R. Co. v. Davies, 146 Fed. 247, 76 C. C. A. 613: Ætna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154 Fed. 545, 83 C. C. A. 431; Nelson v. Bank of Fergus County, 157 Fed. 161, 84 C. C. A. 609, 13 Ann. Cas. 811, and cases therein cited.

The only error which we can consider, and the one chiefly argued, is whether the petition stated a cause of action. This action was founded upon a state statute. Section 422 of the Civil Code of Kansas, supplemented by section 422a, reads as follows:

“See. 422. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the hitter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
“Sec. 422a. That; in ail cases where the residence of the party whose dentil has been or hereafter shall be caused as set forth in section 422 of chapter SO, Laws of 1868, is or has been at the time of his death in any oilier state or territory, or when, being a resident of this state, no personal representative is or lias been appointed, the action provided iii said section 422 may be brought, by the widow, or where there is no widow, by the next of kin of such deceased.”

The petition alleges that deceased died intestate, and left no children or direct descendants; that plaintiff, as the surviving husband, was the next of kin; and that no administrator or personal representative of her estate has been appointed. It is argued that the term "next of kin” means blood relation, and hence does not include the husband. The above statute provides that the damages recovered! shall be distributed in the same manner as personal property .o f the deceased, and under the Kansas statute the husband inherits personal property of his deceased wife.

This statute was, before the cause of action in this case arose, fully considered by the Supreme Court of the state in Atchison, T. & S. F. Ry. Co. v. Townsend, 71 Kan. 524, 81 Pac. 205, 6 Ann. Cas. 191, and in that case it was said:

“It is first contended that, under section 422 of the Code, Townsend was not entitled to recover damages for the wrongful death of his wife. It provides that ‘the damages cannot exceed ten thousand dollars, and must inure to tile exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.' It is insisted that a husband is not ‘next of kin’ of his wife, and that kinship means relationship by blood, and not by marriage. The reference in the section itself .to the statute of descents and distributions furnishes the rule for interpreting the phrase ‘next of kin.’ Under that statute the husband and wife inherit from each other, and it has already been held, in Railway Co. v. Ryan, 62 Kan. 682, 64 Pac. 603, that the phrase, as used in the statute for the recovery of damages for wrongfully causing a death, means those kin who inherit from the deceased under the statute of descents and distributions. See, also, Steel v. Kurtz, 28 Ohio St. 191; Lima, etc., Co. v. Deubler, 7 Ohio Cir. Ct. R. 185; Pinkham v. Blair, 57 N. H. 226.”

This being a construction of the statute by the highest court of the state, and having been rendered before the right of 'action in' this case accrued, that construction is binding upon the federal ^courts. This court, also, in Omaha Water Co. v. Schamel, 147 Fed. 502, 78 C. C. A. 86, sustained the holding that a minor child, who had been adopted by deceased und'er the provisions of the state statute, which entitled her to inherit as a natural child, could recover damages for the loss of the adopted parent.

In the case before us, the question as to whether the husband could maintain the action as next of kin being the only objection urged against the petition, the judgment is affirmed.

Defendant in error has filed a motion to have 10 per cent, damages assessed under rule 30 of this court (150 Fed. xxxv, 79 C. C. A. xxxv). In view of the fact that this court, in Western Union Telegraph Co. v. McGill, 57 Fed. 699, 6 C. C. A. 521, 21 L. R. A. 818, before the Supreme Court of the state had construed the statute, reached a different conclusion, we do not think it can be said that the writ of error was sued out merely for delay.

Hence the motion is overruled.  