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sought, consequently in exclusion of the latter.s

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,

ministrator to recover on behalf of the other beneficiaries.12

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 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

at least a reasonable expectation of pecuni- legal right to pecuniary assistance or sup

ary 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

port 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

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."10 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."

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

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. viving 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

had been spared, justified a recovery in the father's behalf.25

It has been held in cases arising prior to the amendment of 1910 that the right of action for death was given by the statute only to those who suffered a pecuniary loss by reason of death of the employe. Consequently, a parent who was not dependent upon the employe and who received no aid from him could recover nothing for his death.26

whom he had contributed $5 or $6 a month, and had bought for them provisions, clothing, etc., amounting to $5 a month more than his board, it was held that recovery could be had on behalf of such sister and niece as dependents.30

The deceased was a young man, 18 years old, unmarried, and employed at the time. of his death in defendant's freight yards as a beginner-consequently earning only $5 or $6 a week. The next of kin consisted of two brothers, who were married Next of kin dependent.-The heirs or and lived in their own homes, a sister 26 next of kin, other than those who stand in years of age, who was ill and who lived at the relation of husband, wife, children, or home, and another sister, the plaintiff, aged parents, are not beneficiaries unless they 34. Since leaving school, at the age of 14, were dependent upon the deceased during the deceased had been occupied by various his lifetime, and there is no presumption small jobs in which he earned about $5 a that all or any of the next of kin were deweek. The plaintiff was earning $15 a pendent upon him. The existence of a week. The earnings of the deceased were beneficiary within the description of the pooled with those of plaintiff, and went to statute is an issuable fact, and must be alleged and proved.27

In order to recover for the death of a deceased employe it is not essential that the loss be dependent upon any legal liability of the deceased to the beneficiary. There must, however, appear some reasonable expectation of pecuniary assistance or support of which the latter has been deprived.28

Although a sister, next of kin of deceased, is possessed of property and has a clerical position which in part supports her, she is entitled to recover upon evidence that the deceased contributed to her support by the gift of money, by the payment of her board, and otherwise.29

Where deceased, an unmarried orphan, left a sister and niece to the support of

support them and the sister who was illthe three living in the same house. The deceased earned no more than was necessary for his own support. Held, that, as there was no "next of kin dependent" on deceased for support, there could be no recovery.3

That an employe, a laboring man, earning $1.75 a day, sent $5 or $6 of his wages each month to his widowed sister in Italy who had two children, was evidence that she was dependent on him.32

A married sister, in comfortable circumstances, who had boarded deceased, in return for which he had made monthly contributions for about two years prior to his death, was not dependent on deceased, within the meaning of the Act.33

In an action to recover for the death of

dead, evidence that a brother, who was a farmer, had been and was at the time of trial sick and unable to work, was insufficient to go to the jury; there being no evidence that deceased had ever contributed anything to his support or given him anything or rendered him any service of pecuniary value or that his condition and circumstances were such that deceased would probably have felt impelled by the ties of affection to render him any service or assistance of pecuniary value.31

In North Carolina it has been held that the meaning of the words "next of kin," as used in the Act in question, is dependent on the state law regulating inheritances. The state law provided: "Illegitimate children, born of the same mother, shall be considered legitimate as between themselves and their representatives, and their personal estate shall be distributed in the same manner as if they had been born in lawful wedlock. And in the case of the death of any such child or his issue, without leaving issue, his estate shall be distributed among his mother and all such persons as would be his next of kin if all such children had been born in lawful wedlock." It was accordingly held that the half brothers of a deceased employe, who was an illegitimate child, might claim under the Act as dependent next of kin, they being born in lawful wedlock of the same mother. 35

It was held in Kentucky that no recovery could be had for the death of an employe born out of lawful wedlock on behalf of the widow and children of his fatherboth of his parents being dead-he being of no kin to them.30

CARRIER OF GOODS-UNDERCHARGE.

PENNSYLVANIA R. CO. v. TOWNSEND.

Supreme Court of New Jersey. March 27, 1917.

100 Atl. 855.

(Syllabus by the Court.)

Prima facie the consignor of freight who contracts with the carrier for its shipment is liable to pay the charges of transportation, and the mere fact that the charges are left unpaid by the consignor and are to be collected from the consignee at destination does not discharge the consignor from liability to the carrier.

TRENCHARD, J. The Bangor & Aroostook Railroad Company, a common carrier of freight, accepted at Presque Isle Station, Me., a shipment of potatoes from T. M. Hoyt, "consigned to the order of T. M. Hoyt, Columbus, N. J. Notify Wm. A. Townsend," as appears from the bill of lading. That company and the New York, New Haven & Hartford Railroad Company and the Pennsylvania Railroad Company transported the potatoes to Columbus, N. J., and the Pennsylvania Railroad Company there delivered them to William M. Townsend upon his payment to the company of freight charges of $101.45.

This suit was brought by the Pennsylvania Railroad Company against Townsend to recover the sum of $40, the complaint averring that the freight charges were incorrectly calculated by the plaintiff at $101.45, and that the true amount thereof was $141.45. At the trial the judge non-suited the plaintiff. We are of the opinion that the non-suit was right.

"consignee" means the person named in the bill as the person to whom delivery of the goods is to be made. P. L. 1913, p. 261. By the bill in question the goods were "consigned to the order of T. M. Hoyt."

Moreover, the mere existence of the relation of carrier and consignee is not enough to establish a liability of the latter to pay freight charges. There must be an agreement by the consignee, express or implied, in order to create such a liability. Central R. R. Co. v. MacCartney, 68 N. J. Law 165, 52 Atl. 575.

The plaintiff company seemingly recognized these rules, and accordingly in its complaint expressly charged that the defendant, Townsend, agreed to pay the freight charges.

But at the trial no testimony was offered tending to show any such contract or undertaking. The plaintiff produced but one witness, who testified only concerning freight rates. The only other proof in the case was the bill of lading indorsed, "Smith & Hoyt" and "W. A. Townsend," and the admission of the defendant, Townsend, that the plaintiff company delivered the shipment to him upon his payment of the freight charges demanded, amounting to $101.45. There was no evidence showing by whom the indorsement "Smith & Hoyt" was made, nor anything showing any connection between "Smith & Hoyt" and "T. M. Hoyt," the consignee. In this state of the proof the plaintiff company asserted and now asserts tnat "the only question which could arise was: What is the lawful rate?" We think not.

We have pointed out that the consignee was T. M. Hoyt, and that the bill of lading was not indorsed or assigned by him. But if we were to assume that the bill of lading was regularly assigned to Townsend, the defendant, that assumption would not help the plaintiff. There is no proof apart from the bill of lading as to the relation existing between the consignor and Townsend, the defendant, nor as to the relation of Townsend to the goods, nor that he knew the correct amount of the freight charges, nor that he had even made any agreement respecting the same. We have only the bare fact that a statement of the freight charges prepared by the plaintiff was delivered to Townsend, who paid the bill and took the goods. No doubt, if Townsend as assignee of the bill of lading had accepted and removed the goods without paying the charges, with knowledge that the carrier was giving un for

pay the known amount of the freight charges. But the mere acceptance and removal of goods by the assignee of a bill of lading, upon pay. ment of the freight bill as made out by the carrier, without knowledge by the assignee that the same was an undercharge, does not create any further liability on his part, even though, by mistake of the carrier, the bill as rendered did not include the entire charge. Central R. R. Co. v. MacCartney, 68 N. J. Law 165, 52 Atl. 575; Erie R. Co. v. Wanaque Lumber Co., 75 N. J. Law 878, 69 Atl. 168; Pennsylvania R. Co. v. Titus, 156 App. Div. 830, 142 N. Y. Supp. 43.

The reason is that the consignee's liability for freight charges depends not upon any duty resting upon him as consignee, but upon agreement or undertaking by him, and that his acceptance of the goods bound him to pay only the rate specified in the freight bill delivered to him at the time the goods were accepted, and the liability of the assignee of the bill of lading is no greater.

The judgment of the court below will be affirmed, with costs.

NOTE.-Liability of Consignee to Carrier for True Freight Where There Has Been an Undercharge. There seems to be no doubt whatever that a carrier in interstate commerce does not preclude himself from collecting the rate of freight he ought to have quoted. The carrier must collect the schedule rate under the Commerce Act. Texas & P. R. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. ed. 1011; Central R. Co. v. Mauser, 241 Pa. 603, 88 Atl. 791.

Whether, however, a consignee may be sued by a carrier, where he pays an undercharge and secures possession of the freight is a question upon which the cases are in conflict.

In Pennsylvania R. Co. v. Titus, 142 N. Y. Supp. 43, 156 App. Div. 830, the consignee was merely a commission merchant, but this was not known to the carrier. It was held that he was not charged with knowledge of the true rate, where there was an undercharge. See below where this case was reversed.

And so where title to the goods were to remain in consignor until payment of the freight by the consignee, he is not liable to carrier where there was a wrong footing up of the rates to different carriers, and the lien had been lost by it in turning over the goods, though in such case the consignor was bound for the true rate. It was said the consignee's liability "depends not upon any general legal duty resting upon him simply because he is consignee, but upon some agreement or undertaking made on his part." This might not be thought to be conclusive reasoning. He ad

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