
    In re CAREY W. STONE, Guardian of THOMAS STONE.
    (Filed 28 March, 1917.)
    1. Master and Servant — Federal Employers’ liability Act — Negligent Death— Beneficiaries — Distribution—Statutes.
    The Federal Employers’ Liability Act creates three classes, separate and distinct from each other, who may recover damages for the negligent death of an employee, the existence of one to be benefited in any preceding class excluding those in next class following, etc., and the first such class being the surviving widow and the child or children of such employee, and the act not providing for the method of distribution, it is governed by the State statute, and when there is only a widow and one child, the former receives one-third and the latter two-thirds of the amount.
    
      2. Master and Servant — Federal Employers’ Liability Act — “Dependents”— Enlarged Recovery — Appeal and Error — Objections and Exceptions.
    When under the Federal Employers’ Liability Act a recovery in the third class is enlarged by erroneously including those not “dependents,” exceptions thereto should be aptly and duly taken upon the trial; but where the amount of the recovery has been admitted, as by compromise in this ease, the question of the method of its distribution in the first and second class depends upon the State statute of distribution.
    3. Master and Servant — Federal Employers’ Liability Act — Distribution— Courts — Questions of Law- — Trials.
    Under our statute, the method of distribution of a recovery under the Federal Employers’ Liability Act among the widow and children of the deceased employee is one of law, not requiring the intervention of the jury.
    Appeal by respondent guardian from Bond, J., at October Term, 1916, of "WaKE.
    Tbis proceeding was begun before tbe clerk, whose decision was affirmed in tbe Superior Court upon appeal.
    It is admitted tbat tbe deceased was killed while employed by tbe Seaboard Air Line Railway Company in interstate commerce, and left a widow 31 years old and one son 11 years old, and tbat tbe net amount received by her as administratrix of her husband after payment of attorney’s fees was $9,750, and tbat they are both dependent and are tbe sole beneficiaries. It is agreed tbat property owned by either, if any, shall not be considered in passing on tbis question; tbat both are in good health; tbat tbe boy lives with bis mother and tbat their relations to each other are such as usually prevail between mother and minor son. It is admitted tbat tbe money received was paid by compromise to tbe administrator without action and tbat tbe decedent bad taken care of bis wife and child. Upon these facts counsel for tbe widow moved tbe court to submit to tbe jury issues as to tbe relative rights of herself and her child in tbe fund or to refer it to a referee to ascertain tbe amount due each. Tbe court refused to do tbis, and affirmed tbe order of tbe clerk to divide tbe fund in accordance with our statute of distributions, allotting to tbe widow one-tbird and tbe child two-tbirds, and directed tbat tbe widow should give an' administration bond in tbe sum of $13,-000, being double tbe amount of tbe $6,500 allotted to tbe child. From such judgment she excepted and appealed.
    
      Moses N. Amiss and Winston & Biggs for infant.
    
    
      Douglass & Douglass for appellant.
    
   Cl ARK, C. J.

Tbe net sum received by tbe administratrix under the compromise and settlement with tbe railroad company stands on tbe same basis as if it bad been recovered by action. The sole question presented, therefore, is whether the compensation for wrongful death of an employee while engaged in interstate commerce already ascertained and determined is, on the facts of this case, to be apportioned according to our statute of distribution.

The Federal Employers’ Liability Act provides that the action shall be brought by the personal representative of the deceased employee “for the benefit—

“(1) Of the surviving widow, or husband and children of such employee; and if none, then

“(2) Of such employee’s parents; and if none, then

“(3) Of the next of kin dependent upon said employee.”

The Federal statute, therefore, creates three classes, which are separate and distinct from the other. If there is any member of the first class, the other two are excluded. If there is none of the first class, but one or more of the second, then the third class will be excluded. If any member of the last class does not come under the provision, “dependent upon such employee,” (Allen, J., Dooley v. R. R., 163 N. C., 454), then such person is excluded from that class, and if such exclusion should apply to the whole of that class, then there can be no re-' covery. If the recovery by “next of kin” should be enlarged by the wrongful inclusion of one not “dependent,” that question must be raised at the trial by proper exceptions. R. R. v. Zachary, 232 U. S., 248.

The Federal Employers’ Liability Act declares tulio shall take in case of wrongful death, but leaves it as a matter of law how much and what proportion each shall take in its class, except when the State act requires that the appropriation must be made in the verdict, as in McGinnis v. R. R., 228 U. S., 173, under the Texas act. The Fedéral statute makes no provision for the apportionment of the fund, and, therefore, the State statute controls. The source of the recovery is the United States statute, and that indicates only the different classes of the beneficiaries and the manner of ascertaining the amount due. But when the amount and class are ascertained, the sum paid or recovered must be distributed in that class according to the requirement of tire State law. In this case, there being a widow and a child, the amount is to be divided between them according to our statute, two-thirds to the child and one-third to the widow. That matter is regulated by the State statute of distribution. R. R. v. White, 238 U. S., 507.

It is true, as contended by the appellant’s brief, that'the classification of beneficiaries under the Federal act must govern when it differs from the State act, but within the class entitled the Federal act applies only so far as to restrict recovery in the third class to those who suffer some pecuniary loss, while under the State statute this is not so. When, as bere, tbe parties are in tbe same class, there being no conflict between tbe State and Federal statute, tbe latter is silent and tbe State statute controls tbe distribution.

In Broadnax v. Broadnax, 160 N. C., 432, tbe Court beld tbat tbe amount of recovery for wrongful death must under Eevisal, secs. 59, 60, “be disposed of as provided for tbe distribution of personal property in case of intestacy, and tbat it cannot be applied either in payment of debts nor can any part thereof be allotted to tbe widow on her year’s support,” and to tbe same purport, Neill v. Wilson, 146 N. C., 242; but this doés not exempt tbe share of tbe distributee from being liable to bis creditors.

In Hartness v. Pharr, 133 N. C., 566, it was beld tbat where a person domiciled in another State is killed in this State, and bis administrator sues bere, tbe funds recovered must be distributed according to our statute, although prior administration bad been taken out in tbe State of bis domicile, citing Dennick v. R. R., 103 U. S., 11; McDonald v. McDonald (Ky.), 49 Am. St., 289; Nelson v. R. R., 88 Va., 971; s. c. 15 L. R. A., 583; Morris v. R. R., 65 Iowa, 727, and other eases. Tbe reason is tbat tbe fund having been recovered in our jurisdiction, and not being assets for payment of debts, must be distributed according to oui statute in such cases.

In Kenney v. R. R., 167 N. C., 14, it was beld tbat tbe meaning of tbe words “next of kin” in tbe Federal Employers’ Liability Act is dependent upon tbe State law regulating inheritances. This was affirmed on writ of error, R. R. v. Kenney, 240 U. S., 489, citing Blagge v. Blach, 162 U. S. (at p. 464), tbat Congress intended tbat tbe “next of kin” should be determined “according to tbe statutes of distribution of tbe respective States of tbe domicile of tbe original sufferers.” Holding, further, tbat whether tbe next of kin occupied a dependent relation which would have entitled them to recover was foreclosed by tbe finding of tbe jury, as it is in this case by tbe adjustment of tbe amount by tbe parties in lieu of a verdict.

In regard to tbe cases relied on by tbe appellants, McGinnis v. R. R., 228 U. S., 173, presented a question whether, tbe recovery being limited to dependent relatives, a surviving child who was not dependent upon tbe decedent could recover anything. Tbat is not tbe case bere, where tbe amount is determined and tbe on)y question is as to tbe apportionment between tbe child and dependent widow. Tbe same question as to making an allowance in tbe verdict arises in R. R. v. Holbrooh, 235 U. S., 629.

In R. R. v. White, 238 U. S., 508, it was beld tbat tbe omission from tbe Federal statute of tbe apportionment required by Lord Campbell’s Act (and in only a few of tbe American States) indicated “Tbe intention of Congress to follow tbe practice in most of tbe American States of not requiring such apportionment, and that where it was alleged that next of kin not dependent, and, therefore, not entitled to recover, were included, and had thus swelled the amount of the recovery, the question of their exclusion, or, rather, wrongful inclusion, should be raised in an appropriate manner under the practice of the court in which the trial was had,” citing R. R. v. Zachary, 232 U. S., 248. No question of that kind (which could concern the railroad company only) arises here, as the amount n as settled by compromise, and both the widow and her son are entitled to recover in the first class.

In Taylor v. Taylor, 232 U. S., 363, it was held that the Staté statutes could hot defeat the right of the widow, though childless, from recovery, because she is expressly embraced in the preferred class under the Federal statute.

In R. R. v. Leslie, 238 U. S., 599, it was held that a recovery under the Federal statute would not be reversed on writ of error because the jury was not required to specify in its verdict'the amount awarded on account of each distinct liability, where such verdict is in accordance with local practice. It was otherwise in the McGinnis case, supra, for in Texas it was held that the failure of the jury to apportion the damages assessed was error. Tiffany on Death by Wrongful Act, see. 89.

It is well settled that the amount allotted to each party entitled is of no concern to the defendant unless such allotment increased the amount of the total recovery. In this case, the amount being settled by agreement, the defendant is not concerned, and the sole question is as to the distribution, which must be determined by the State statute of distributions. In apportionment States — Maryland, Texas, and Virginia, which substantially follow Lord Campbell’s Act — the recovery should be apportioned by the jury or other appropriate tribunal. But in nonappor-tionment States, like North Carolina and probably all the other States not above named, while such fund must be distributed among the beneficiaries designated by the Federal statute, yet the amount going to each distributee (if belonging to the class entitled to recover and dependent) must he disbursed according to our statute of distributions.

Upon the facts in this case the judgment was entirely correct, and must be

Affirmed.

Walker, J., and AllbN, J., dissent.  