UNITED STATES SUPREME COURT DECISIONS ON-LINE

The Employers' Liability Act of 1908, prior to the amendment of April 5, 1910, declared two distinct and independent liabilities resting upon the common foundation of a wrongful injury:

1. Liability to the injured employee for which he alone could recover;

2. In case of death, liability to his personal representative for the benefit of the surviving widow or husband and children, and if none, then of the parents, but only for pecuniary loss and damage resulting to them by reason of the death.

The declaration must contain an averment substantially of every fact necessary to be proved to sustain plaintiff's right of recovery in order to let in the proof, and every issue must be founded upon a certain point, so that parties may come prepared with their evidence and not be taken by surprise, and so that the jury may not be misled by introduction of various matters.

While the same precision is not required as in pleadings at law, a convenient degree of certainty must be adopted as to bills in equity so as to maintain plaintiff's case.

When proofs go to matters not set up in the bill, the court cannot act upon them as a ground for decision. They are not put in contestation by the pleadings. clubjuris

Page 235 U. S. 309

Common experience may be taken as a guide in teaching that financial damage is not always a necessary consequence to the parent as the result of the death of an adult son, and if such damage is not pleaded, proof cannot be offered in regard thereto.

Where plaintiff refused to amend after permission so as to allege pecuniary damage due to the death of his son, the court below committed no error in excluding evidence as to such damage and dismissing the complaint, and the judgment should be affirmed, and the case will not be remanded for new trial on the declaration's being amended.

197 F.7d 5 affirmed.

The facts, which involve the construction of the Employers' Liability Act of 1908, and the right of parents to recover for death of an adult son, are stated in the opinion. clubjuris

Page 235 U. S. 310