This action for damages under the employers' liability act, approved April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322), was originally brought in the state court March 31, 1910. It was removed to the circuit court of the United States, middle district of Tennessee, and tried there in May, 1911. The declaration contains three counts, each of which alleges that plaintiff is the administrator of T. W. Lewis, Jr., by appointment of the county court, Stewart county, Tennessee; defendant is a Kentucky railroad corporation engaged in interstate commerce; in September, 1909, the deceased was employed as a brakeman on one of its freight trains moving in such commerce; through negligence of its operatives and servants a collision occurred; in an effort to save his life he was caught under the engine and held there for six hours or more, suffering intense agony and pain, followed shortly by death; he was twenty-four years of age, strong, vigorous, with fine business qualifications and earning capacity. The first and second counts allege that the deceased left surviving T. W. Lewis, his father, and Mrs. T. W. Lewis, his mother, and that 'plaintiff, as administrator of the said intestate, sues the defendant, for the benefit of his parents, in the sum of $50,000 damages.' The third count alleges the survival of not only father and mother, but also brothers and sisters (the names of the latter not being given), and that 'plaintiff, as administrator of the said decedent, sues the defendant in the sum of $50,000 damages.'

The trial judge, having definitely offered the plaintiff on opportunity to amend his declaration, which was declined, excluded all evidence relating to the mental and physical suffering of the deceased, and also all tending to show pecuniary loss sustained by the parents; and then peremptorily instructed the jury to return a verdict for defendant. The United States circuit court of appeals tendered a further opportunity to amend, and, when this was rejected, affirmed the judgment of the trial court (117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769). The cause is here upon writ of error.

The questions presented are: First, whether, under the employers' liability act of 1908 (before amendment of April 5, 1910 [36 Stat. at L. 291, chap. 143, U. S. Comp. Stat. Supp. 1911, p. 1324]), the administrator of one who died of painful injuries suffered while employed in interstate commerce by a railroad engaging therein can recover damages for the benefit of the estate (third count); and, second, whether, if such administrator sue for the benefit of the employee's parents, there being no surviving widow or husband or child, it is necessary to allege facts or circumstances tending to show that, as a result of the death, they suffered pecuniary loss (first and second counts).

The nature of the rights and responsibilities arising out of this act has been discussed and determined in four opinions announced by this court since the instant cause was decided by the circuit court of appeals. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. ed. 417, 33 Sup. Ct. Rep. 192, Ann. Cas. 1914C, 176; American R. Co. v. Didricksen, 227 U. S. 145, 57 L. ed. 456, 33 Sup. Ct. Rep. 224; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 57 L. ed. 785, 33 Sup. Ct. Rep. 426, 3 N. C. C. A. 806; North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159. It is now definitely settled that the act 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 can recover; and (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, which extends only to the pecuniary loss and damage resulting to them by reason of the death.

The third count of the declaration under consideration states no cause of action. The employee's right to recover for injuries did not survive him.

Where any fact is necessary to be proved in order to sustain the plaintiff's right of recovery, the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point, so that the parties may come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters. Bank of United States v. Smith, 11 Wheat. 171, 174, 6 L. ed. 443, 444; Minor v. Mechanics' Bank, 1 Pet. 46, 67, 7 L. ed. 47, 56; De Luca v. Hughes, 96 Fed. 923, 925; Rose v. Perry, 8 Yerg. 156; Citizens' Street R. Co. v. Burke, 98 Tenn. 650, 40 S. W. 1085, 2 Am. Neg. Rep. 459; 1 Chitty, Pl. *270. Although the same precision of statement is not required as in pleadings at law, nevertheless it is held to be absolutely necessary that in bills of equity such a convenient degree of certainty should be adopted as may serve to give the defendant full information of the case which he is called upon to answer. Every bill must contain in itself sufficient matters of fact, per se, to maintain the plaintiff's case; and if the proofs go to matters not set up therein the court cannot judicially act upon them as a ground for decision, for the pleadings do not put them in contestation. Harrison v. Nixon, 9 Pet. 483, 503, 9 L. ed. 201, 208; Dan. Ch. Pl. & Pr. *368.

The plaintiff's declaration contains no positive averment of pecuniary loss to the parents for whose benefit the suit was instituted. Nor does it set out facts or circumstances adequate to apprise the defendant with reasonable particularity the such loss in fact was suffered. Common experience teaches that financial damage to a parent by no means follows as a necessary consequence upon the death of an adult son. The plaintiff expressly declined in both courts below so to amend his declaration as to allege pecuniary loss to the parents; and judgment properly went against him.

The request is now made that, in view of all the circumstances, especially the former undetermined meaning of the statute, this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted.

Judgment affirmed.