CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
Stone, Black, Reed, Frankfurter, Douglas, Murphy, Rutledge, Burton; Jackson took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Congress provided in the Federal Employers' Liability Act (35 Stat. 65, 45 U. S. C. § 51) that the carrier's liability in case of the death of an employee runs
"to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's
parents; and, if none, then of the next of kin dependent upon such employee . . ."
The deceased, residing in Pennsylvania, was a railroad engineer employed by respondent and was killed while engaged in its service in interstate commerce. Respondent's negligence was conceded. The deceased left no widow, children, or parents. His nearest surviving relatives were two sisters and a nephew, none of whom was in any way financially dependent on him. But petitioner, who was his cousin, was a member of his household and wholly dependent on him for support. The district court rendered judgment for petitioner. 57 F.Supp. 625. The circuit court of appeals reversed, holding that petitioner was not entitled to recover since there were nearer relatives, though not dependent ones, who survived the deceased. 150 F.2d 902. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question.
We assume, without deciding, that the circuit court of appeals correctly concluded that members of the second or third class, irrespective of their need, are not entitled to recover if there survives a member of the prior class. Cf. Notti v. Great Northern R. Co., 110 Mont. 464, 104 P. 2d 7. The liability is not "to the several classes collectively" but in the alternative to one of the three classes. Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, 163. Thus to an extent, at least, the order of priority is determined by relationship, not by dependency. See New Orleans & N. E. R. Co. v. Harris, 247 U.S. 367. Cf. Lytle v. Southern R. Co., 152 S. C. 161, 149 S. E. 692. But the circuit court of appeals went further and applied that principle to determine which members of the third class (next of kin) were entitled to recover. It said that since parents or grandchildren, dependent on the deceased, are left without remedy if a widow or child survives, Congress could not have meant to recognize remote
members of the deceased's other kin, similarly situated. It read "next of kin dependent upon such employee" to mean "next of kin, if dependent upon such employee." Since the two sisters and nephew were the "next of kin" who would take to the exclusion of petitioner under Pennsylvania's law of descent and distribution*fn1 if the deceased died intestate, petitioner was barred here.
We read the statute differently.
It is clear that "next of kin" is determined by state law. Seaboard Air Line v. Kenney, 240 U.S. 489. State law governs whether it is necessary to determine if one relative is closer than another, or if a claimant falls within or without the class. But under this Act, unlike the state statutes of descent and distribution, a member of the third class must be not only next of kin but also dependent on the deceased in order to recover. The emphasis on dependency suggests that Congress granted the right of recovery to such next of kin as were dependent on the ...